How Will Bankruptcy Affect My Non-Filing Spouse?
Filing for bankruptcy can be difficult, especially when you’re married and concerned about how it might impact your non-filing spouse. In this comprehensive guide, we’ll explore how bankruptcy can affect a non-filing spouse and provide valuable tips to help minimize the impact.
Community Property vs. Common Law States
The effects of bankruptcy on a non-filing spouse largely depend on whether you live in a community property state or a common law state. In community property states, debts and assets acquired during the marriage are considered jointly owned. Common law states debts and assets belong to the individual who incurred or acquired them.
- Community Property States: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
- Common Law States: All other states not listed above, like North Carolina.
Remember, state laws and regulations can vary, so it’s essential to consult with a knowledgeable bankruptcy attorney to understand the specific rules that apply to your situation.
Case Examples: Bankruptcy and Non-Filing Spouses
To better illustrate the potential impact of bankruptcy on a non-filing spouse, let’s explore two hypothetical scenarios:
- Common Law State: John and Jane live in a common law state. John is overwhelmed by credit card debt in his name only and decides to file for Chapter 7 bankruptcy. Since the debt is solely in John’s name and they live in a common-law state, Jane’s credit will not be affected by John’s bankruptcy filing. Additionally, their jointly-owned assets may be protected by bankruptcy exemptions.
- Community Property State: Mike and Michelle live in a community property state. Mike filed for Chapter 7 bankruptcy to discharge medical debt incurred during their marriage. Since they live in a community property state, Mike and Michelle’s assets could be at risk during bankruptcy. However, the non-filing spouse (Michelle) would not be held responsible for the discharged debt after the bankruptcy.
Bankruptcy Exemptions and Protecting Assets
Bankruptcy exemptions protect assets for the filing individual and their non-filing spouse, especially in common law states. Exemptions vary by state and can include homestead, vehicle, and personal property exemptions. Consult with a bankruptcy attorney to learn which exemptions apply to your situation and how they can help protect your assets.
Pre- and Post-Bankruptcy Planning
Pre- and post-bankruptcy planning can help minimize the impact of bankruptcy on your non-filing spouse. Consider the following tips:
- Separate Finances: If you plan to file for bankruptcy, separating your finances can help protect your non-filing spouse’s credit and assets.
- Close Joint Accounts: Close joint credit accounts or remove the non-filing spouse as an authorized user to prevent adverse credit reporting.
Manage Community Property: In community property states, consider using a prenuptial or postnuptial agreement to define a separate property or convert some community property into separate property.
- Reaffirming Debts: If the non-filing spouse wants to keep certain assets, such as a car, they can consider reaffirming the debt to take over the responsibility of repaying it.
- Monitor Credit Reports: Encourage the non-filing spouse to regularly check their credit report to ensure the bankruptcy filing doesn’t negatively impact their credit.
- Rebuilding Credit: After bankruptcy, focus on rebuilding credit by paying bills on time, maintaining low credit card balances, and using credit responsibly.
Communication and Support
Open and honest communication with your spouse is vital throughout the bankruptcy process. Discuss your financial situation and bankruptcy’s potential impact on your spouse, and develop a plan to minimize any adverse effects. Additionally, seeking support from a qualified therapist or counselor can help couples navigate the emotional challenges of bankruptcy.
It’s also a great idea to have your non-filing spouse attend a consultation with a bankruptcy attorney with you. Most non-filing spouses are concerned with the impact of their spouse filing a bankruptcy may have on them. Explain how the bankruptcy of one spouse will have very little, if any, negative impact on a FICO credit score can be explained by a qualified bankruptcy attorney.
Consult with a Bankruptcy Attorney
Bankruptcy can be a complex process with far-reaching implications for the filing individual and their non-filing spouse. Therefore, consulting with an experienced bankruptcy attorney who can provide personalized advice and guidance tailored to your specific situation is essential.
In conclusion, while bankruptcy may impact a non-filing spouse, careful planning, communication, and the assistance of a knowledgeable attorney can help minimize these effects. In addition, exploring alternative debt relief options and having a solid plan for rebuilding credit after bankruptcy can further reduce the impact on a non-filing spouse.
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Kay says: My lawyer said that he cannot include my husband’s credit card expense/loans but he included his income. Therefore, I can afford to pay certain amount he mentioned that clearly I don’t have since it is being use to pay for my non filing spouse’s expense. I’m from PA. It does not make sense to me. Please help clarify since it’s mention here non filing spouse expense can be deducted. I cannot file because I know I cannot pay that amount.
Thank you very much.-
Duncan Law Team says: Kay,
Typically, at least in North Carolina, you can deduct the non-filing spouses expenses. However, it really depends upon the judge in the jurisdiction where you live. Many judges will not allow someone to include expenses if it makes more financial sense for the couple for both parties to file. In other words, if you are filing a Chapter 13 bankruptcy and your husband has $15,000 of debt in his own name the judge may want your husband to file as well since it will make more financial sense for the household. I would discuss it again with your attorney because they will be most familiar with the specific laws and judges in your area. Best of luck!
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Should I file bankruptcy if I’m going to be moving overseas?
My lawyer said that he cannot include my husband’s credit card expense/loans but he included his income. Therefore, I can afford to pay certain amount he mentioned that clearly I don’t have since it is being use to pay for my non filing spouse’s expense. I’m from PA. It does not make sense to me. Please help clarify since it’s mention here non filing spouse expense can be deducted. I cannot file because I know I cannot pay that amount.
Thank you very much.
Kay,
Typically, at least in North Carolina, you can deduct the non-filing spouses expenses. However, it really depends upon the judge in the jurisdiction where you live. Many judges will not allow someone to include expenses if it makes more financial sense for the couple for both parties to file. In other words, if you are filing a Chapter 13 bankruptcy and your husband has $15,000 of debt in his own name the judge may want your husband to file as well since it will make more financial sense for the household. I would discuss it again with your attorney because they will be most familiar with the specific laws and judges in your area. Best of luck!