Do I Have to File Bankruptcy With My Spouse

Hello, this is Roger Ghai, and I’m a bankruptcy attorney here in the Acworth, Kennesaw, and Marietta areas. Sometimes I have questions from potential clients inquiring about whether they should file the bankruptcy case with their spouse or whether they are actually required to file the bankruptcy case with their spouse. Number one, you are not required to file a bankruptcy case with your spouse. Many times people maybe have come into a marriage, one partner has a lot of debt, the other partner doesn’t have very much debt and so it only makes sense to file the bankruptcy case for the partner who has a lot of debt. The other factor in deciding whether you’re going to file or not is this: there are certain exemptions and assets and everything that must be accounted for in the bankruptcy case itself.
So, let’s say for example, you came into a marriage, one spouse had a home or residence titled solely in his or her name, and you don’t want to put that person in the case with you filing a chapter 7 bankruptcy case because it could jeopardize their right to keep that home. In fact, it would jeopardize it in most instances. So in that instance, it would probably make more sense just for one spouse to file the case versus the other spouse.
And along these lines, too, is when you file a bankruptcy case, each party’s individual assets and liabilities many times, it all has to be scrutinized. Because you might have somebody, one of the partners that has $100 000 worth of debt, and I’ve had people come in to me and the couples thought they both have to fall together. And then I’ll say, “Well, how much debt do you have?” To the other potentially non-filing spouse, and it may be five to $10 000.
And of course in that instance, it does not make sense at all for a couple to file together. Now, there are some advantages to filing a bankruptcy case as a couple. The first advantage is number one, you will save a lot of attorney fees. If it’s an appropriate case and both of you have a lot of debt, then there’s no sense in you paying two attorney fees to file two separate bankruptcy cases and two separate court costs. So most of the time, I should say the bankruptcy lawyers will just charge one fee, regardless of whether one spouse is filing or two spouses are filing. So there’s usually not an increase, or at least my office does not have an increase just because a husband and wife are filing a bankruptcy case. So if you have any questions from a legal perspective as to whether it makes sense for both of you to file or just one of you to file a bankruptcy case, call my office at (770) 792-1000.