Thinking About Filing Bankruptcy Without Your Spouse?
Yes, you can file bankruptcy without your spouse. The Bankruptcy Code doesn’t require married people to file together, but whether or not you are living together can mean the difference between filing Chapter 7 or Chapter 13 bankruptcy.
If you are married and filing bankruptcy, either with or without your spouse, you will still have to take into account your spouse’s income and expenses to determine if you meet the income limits under the means test to qualify for Chapter 7. That income will also have to be considered to determine how much you have to pay in your Chapter 13 plan. But if you and your spouse aren’t living together, we may not have to include his or her income. Specifically, that income does not have to be included in two circumstances.
Section 707(b)(7)(B) of the Bankruptcy Code states:
In a case that is not a joint case, current monthly income of the debtor’s spouse shall not be considered if—
-the debtor and the debtor’s spouse are separated under applicable nonbankruptcy law; or
-the debtor and the debtor’s spouse are living separate and apart, other than for the purpose of evading [the income limits under the means test]; and–the debtor files a statement under penalty of perjury—
–specifying that the debtor meets [other] the requirement[s of this section]; and–disclosing the aggregate, or best estimate of the aggregate, amount of any cash or money payments received from the debtor’s spouse attributed to the debtor’s current monthly income.
Basically, there are two requirements: either you and your spouse are legally separated under state family law, or you are separated for other reasons (e.g. employment). You just can’t be separated just so you can get around the bankruptcy rules. As long as you include a statement to that effect and disclose any income you may be receiving from your spouse in your bankruptcy petition, you’ll be fine.
Not having to include your spouse’s income can make a big difference in being able to file Chapter 7 bankruptcy, which allows you to eliminate your dischargeable debt about 90 days after we file your petition. This can also mean that you can file bankruptcy before your divorce is final (if that happens to be the reason why you’re living separately). After we talk some more we might tell you that we think it’s a better idea if you wait until your divorce is final before we file your petition.
Talk To An Experienced Denver Bankruptcy Lawyer About Filing Bankruptcy Without Your Spouse
If you have questions about how your marital status could affect your bankruptcy filing, please come in for a free, no-obligation consultation with an experienced lawyer. Our online scheduling system allows you to make an appointment that’s convenient for you, or you can call 303.331.3403 to set up a time.
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