Can a Spouse File Bankruptcy Without the Other's Consent?
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Can a Spouse File Bankruptcy Without the Other's Consent?

Under the U.S. bankruptcy code, a married person can file as an individual or jointly with his or her spouse. A spouse can file an individual bankruptcy petition without the other's consent, but not a joint petition. In other words, one spouse cannot force the other person in the marriage into bankruptcy.

Despite this limitation, filing bankruptcy without the other spouse's consent could have legal repercussions for the non-filing spouse. One common complication is the presence of joint debts.

What Happens to Joint Debt in Bankruptcy Without A Spouse's Consent?

As mentioned above, one spouse can file for Chapter 7 or Chapter 13 bankruptcy without the other spouse’s consent.

However, if both spouses owe debts together, the bankruptcy filing of one spouse may not eliminate the debt obligations of the non-filing person. Here’s how this may work:

  • Joint debt. Getting married does not automatically combine the debts of the married parties. Most couples, though, obtain joint debt by co-signing on loans, such as home mortgages and car loans.
  • Bankruptcy’s effect on joint debt. In Chapter 7 bankruptcy, the court forgives the filer's obligation to repay a debt, but creditors can still go after the cosigner. A non-filing spouse is typically protected in a Chapter 13 case, since debts are repaid through the court, though there may be some exceptions.
  • Joint taxes. If a couple files taxes together, they are both equally liable for tax debts, regardless of their bankruptcy status.

So, while bankruptcy can be filed by one spouse without the other’s consent, informing the other spouse may help eliminate potential debt disputes.

Effects of Bankruptcy on the Credit of Non-Filing Spouse

In addition to potential debt obligations, a non-filing spouse may also have some credit concerns. In the event of a bankruptcy filed by one spouse:

  • If there are no joint debts, the bankruptcy will probably not show up on the credit report of the non-filing spouse.
  • The bankruptcy, though, may have some effect on the credit of the non-filing spouse if both spouses intend to obtain a joint loan in the future, or if the non-filing spouse has to take on new loans in his or her name only.

Credit concerns and joint debt are only a few of the complications that arise when one spouse files bankruptcy without the other. Speaking with a local attorney may help address your concerns.

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