David M. Siegel answers in 45 seconds. Watch on YouTube · Read the transcript.
Short answer: Yes, and it often makes perfect sense. If only one spouse carries the debt, there is no reason for the other to join. When the debt is joint, filing together is usually better — both get a clean slate, the debts combine into one petition, and it is the same filing fee and the same attorney fee.
One filing fee either way
This surprises people. A married couple filing jointly pays the same court filing fee as one person filing alone, and the same attorney fee. Two discharges for the price of one.
So when the debts are joint, filing together is usually the better value as well as the better outcome. Both spouses come out clean and nobody is left holding a balance the other discharged.
When one spouse should file alone
If the debt belongs to one spouse — from before the marriage, from a business, from medical treatment in one name — the other has no reason to file. A spouse with little or no debt should not put a bankruptcy on their record for no benefit.
That matters when the non-filing spouse has good credit worth protecting, particularly if a mortgage or a refinance is anticipated in the next few years.
What an individual filing does and does not do
Filing alone discharges your liability. It does not discharge your spouse’s. On a jointly signed debt, the creditor can still pursue the non-filing spouse for the full amount — which is precisely why joint debt usually points toward a joint filing.
This catches people out. A card in both names, discharged by one spouse only, becomes entirely the other spouse’s problem. Worth checking whose name is actually on each account before deciding.
The non-filing spouse still gets counted
Even in an individual filing, household income is examined for the means test, and a spouse’s income is part of the household. There are adjustments for a separated spouse or for income that genuinely does not support the household, but the starting point is the whole household.
So a non-filing spouse is not invisible to the process, even though they are not a party to it. That is one of several reasons this decision is worth a conversation rather than a guess.
Trying to work out whether both of you should file?
The consultation is free and there is no obligation. You will find out what you qualify for, which debts can be eliminated, what it costs, and what the payment plan looks like.
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Full transcript of the video
can one spouse file without the other yes and often times that makes perfect sense if only one spouse has the debt there’s no reason for the other spouse to join in in some cases it makes perfect sense to file together as long as you are married each of the debts will be combined into one petition and it’ll be a clean slate for both parties under Chapter 7 depending on the type of the debt and they can do that under the same filing fee and under the same attorney fee so joint debt makes perfect sense for people to file together if they don’t have joint debt they don’t need to file together in fact one only needs to file if there’s significant debt for one the party who doesn’t have any debt or very little debt does not need to file at all
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About the author. David M. Siegel has represented consumer bankruptcy clients in the Northern District of Illinois since 1991 and is the author of several books on consumer bankruptcy. The firm has offices at 790 Chaddick Drive, Wheeling, IL 60090 and 10540 S. Western Ave, Suite 202, Chicago, IL 60643, and handles cases by phone for clients throughout the Chicago area.
This article is general information about Illinois and federal bankruptcy law. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts — speak with an attorney about yours.