Marriage is a partnership; it always runs more smoothly if you agree on significant decisions. But when one spouse wants to file bankruptcy, and one is reluctant – what can be done? If you are married and wish to file bankruptcy, but your spouse refuses to, you can move forward. However, let’s investigate the variables you should consider before proceeding.
Filing Bankruptcy Without Your Spouse
Can one partner in a marriage file bankruptcy on their own? While the answer is yes, the better question is, should one spouse file – or will it be more beneficial for the couple to file jointly?
You might wonder if the benefits and protections of bankruptcy exist if only one member of the marriage file. The fact is that every situation is unique and different, and variables can cause different outcomes. Therefore, before filing for bankruptcy without your husband or wife, understand Florida’s laws. The best resource is a local bankruptcy attorney with the expertise you need to guide you.
Is Filing Bankruptcy Without Your Spouse a Good Idea?
While one party in the marriage is allowed by law to file bankruptcy alone – it is often not the best idea unless the spouse has little to no debt. In fact, the status of both parties’ finances is one of the most essential variables to consider in this situation.
Filing bankruptcy without your spouse may be advisable when all the debt for a married couple is carried under one spouse’s name. If one partner holds all the debt in a marriage, the other spouse would be free of debt. In this specific situation, there are valid reasons for the partner with debt associated with their name to file bankruptcy alone.
The following conditions may indicate that a solo bankruptcy filing is advisable:
- Debts are in one spouse’s name only.
- The couple filed a pre-nuptial agreement.
- The married couple maintains separate finances.
- Separation of finances is well-documented and easily proven.
- The non-filing spouse previously filed for bankruptcy and is not eligible to file again.
- The couple wants to reserve the right to file for bankruptcy in the future.
- The non-filing spouse is anticipating an inheritance. (Any inheritance received within 180 days of filing bankruptcy is included in the bankruptcy estate and can be used to pay creditors.)
Additional Benefits of Filing Bankruptcy Without Your Husband or Wife
In those situations where the debt obligation is only associated with one spouse, filing alone will typically protect the debt-free spouse’s credit score. There could be some tangential effects from the spouse’s bankruptcy filing, especially if there are shared assets and the bankruptcy makes it challenging to remain current on the associated debts. However, when only one spouse files for bankruptcy, the non-filing spouse will remain liable for any debts discharged in bankruptcy.
If you have family law questions or are considering bankruptcy, an experienced attorney can be your most valuable ally. These situations can be complicated, and you can sabotage your results if you make a mistake. Give yourself the best chance for a positive outcome – call the team at Richard V. Ellis today. We are here to help.
As an experienced family law and bankruptcy attorney, Richard V. Ellis has assisted hundreds of people over several decades in navigating the legal nuances of bankruptcy. At the law offices of Richard V. Ellis, our team specializes in helping Sarasota residents and families out of challenging situations.