Does My Spouse Have to File Bankruptcy If I Do?

Deciding to seek protection from creditors through bankruptcy is usually a last resort. Most debtors try a wide variety of solutions to their financial problems before finally deciding that bankruptcy is the best long-term solution. If you are married, one of the reasons you may be hesitating to file bankruptcy is that your spouse doesn’t want to file and/or doesn’t need to file. This need not be a concern because your spouse is not required to file bankruptcy just because you file.

Both parties to a marriage do not always share in the debts of the marriage. Often, parties come into a marriage with pre-marriage debts. Spouses are also more likely today to keep their finances separate, even after marriage. For these reasons, it is not uncommon for one spouse to be heavily in debt and the other spouse to be debt-free or at least not concerned about debts. Unfortunately though, the debts of once spouse do often impact the marriage as a whole, causing the other party to at least have an interest in the resolution of the debts. What happens if one spouse decides that bankruptcy is the only/best solution but the other spouse is opposed to bankruptcy? The simple solution is to have one spouse file bankruptcy and the other spouse not.

A married couple may file a joint petition for bankruptcy but the couple is not required to file together. While your spouse is not required to file bankruptcy just because you do, your filing could have an adverse impact on your spouse. If you  file a chapter 7 bankruptcy, for example, and you discharge a joint debt, the creditor can continue to pursue payment for the debt from your co-debtor – in this case your spouse.

However, even though your spouse does not have to join you when you file a bankruptcy case, we strongly advise that our non-filing spouses attend the session in my office as we finalize the paperwork and file the case. That way both spouses, filing and non-filing, understand the legal consequences of a bankruptcy filing and are able to ask me any questions they may have about the bankruptcy filing.

In Texas, when you marry your spouse, you do not get married to their debts as well. Texas is a community property state. But there is no such thing as community debt in Texas.

If you spouse is ill, it affects you. If your spouse has debt, it can also affect you. Remember your wedding vows….”in sickness and in health, richer or poorer”. Consulting with an experienced bankruptcy lawyer is vital if either you or your spouse is considering a bankruptcy filing. And attending the sessions with the bankruptcy lawyer with your spouse (even if you are not joining your spouse in the bankruptcy filing) is vital to understanding the process and protecting yourself.  It can also be very helpful to the marriage as well!

While your spouse is not required to file bankruptcy if you choose to do so, be sure to consult with an experienced Texas bankruptcy attorney to ensure that your spouse and his/her property is protected when either of you (or both of you) file a bankruptcy case.

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