In Bankruptcy Information

This question comes up frequently. A couple is separated but not divorced. Only one of the two is filing bankruptcy. Does the non-filing spouse’s income get put on the filer’s Schedule I (income) and on the Means Test?

The answer depends on what you mean by “separated.” This term means many things to different people. To some it means the parties have physically separated — one has left the marital home and is living elsewhere. To some it means hubby is living in the basement. To some it means they’re in the process of getting a divorce but still living together.

If the parties don’t maintain separate households, the non-filing spouse’s income has to be included in the filer’s statements and Means Test. This is because as long as there is only one “economic unit” (one household) the non-filing spouse’s income is, at least theoretically, available to pay the debts. The non-filer is making use of the house, so presumably he or she is contributing to the mortgage payment or rent. Likewise with utilities, food, child care, etc.

If the parties are actually living apart then the non-filing spouse’s income is not part of the household income available to the filer and doesn’t have to be included in Schedule I or the Means Test. However, if the filer is receiving temporary support, that support payment has to be included as part of her Schedule I income and on the Means Test.

There are similar rules for roommates, which we’ll address next week.

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