Marriage doesn't decide it
Being married doesn't mean both spouses have to file. The law allows three arrangements: both spouses file one joint case, one spouse files alone, or each files a separate case. Only people who are legally married to each other can file jointly.
How a joint case works
A joint petition is one case with two debtors. In practice that means:
- One filing fee and one set of forms, listing both spouses' property, debts, income, and expenses.
- Each spouse takes both required courses and gets their own certificates.
- Both sign the forms and both attend the 341 meeting.
- Each spouse gets a discharge.
When one spouse files alone
Only the spouse who files gets a discharge. That has a direct effect on debts both spouses signed for: the filing spouse is no longer liable, and the other spouse still owes the full amount. Creditors can keep collecting from the spouse who didn't file.
The bankruptcy goes on the credit report of the person who filed. It isn't added to the other spouse's report, though a joint account included in the case shows up on both.
The other spouse's income still counts
This surprises people. When spouses live together, the forms ask for the whole household's income even if only one of them is filing. The Means Test forms have a second column for a non-filing spouse, and Schedule I asks for that spouse's income too. Household size counts both spouses either way.
The Means Test then subtracts the part of the non-filing spouse's income that isn't spent on the household, such as payments on that spouse's own separate debts. The forms call this the marital adjustment.
Property
What ends up in the case depends on the state.
In most states, a spouse filing alone brings in their own property and their share of anything owned together. The other spouse's separate property stays outside the case.
In community property states, most of what either spouse earned or bought during the marriage belongs to both. When one spouse files, all of that community property is part of the case. The official forms list these as Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico. Form 107 asks whether you've lived with a spouse in one of them in the last eight years.
Community property states also extend the discharge. After one spouse's case, creditors holding discharged community debts can't go after community property the couple acquires later.
Exemptions
In a joint case under the federal exemption list, each spouse claims a full set, which doubles the amounts. State lists handle this differently. Some double for a married couple, some double only certain exemptions, and some don't double at all. More in What you keep: exemptions.
Chapter 13 and co-signed debts
Chapter 13 has a protection Chapter 7 lacks. While a plan is running, creditors can't collect a consumer debt from a co-signer, including a spouse who didn't file. The protection lasts as long as the case does. A creditor can ask the court to lift it when the plan doesn't pay that debt in full.
Separation and divorce
Spouses who are separated and living apart report only their own household. Debts between spouses get special treatment: child support and alimony are never discharged, and in Chapter 7 the same goes for other debts owed to a spouse or former spouse under a divorce decree or separation agreement.
Why this is a common place for help: which arrangement fits a couple depends on whose name is on each debt, what the couple owns, and the state's property and exemption laws. It's one of the questions legal aid clinics and attorneys are asked most.
For how household income is measured, see Do I qualify for Chapter 7?