People who are overwhelmed by credit cards, medical bills, and other debts often want to file for bankruptcy but are afraid to proceed because they have a spouse that doesn’t want to file. The spouse may have good credit and is afraid a joint bankruptcy will hurt their credit score, or that spouse may not have any debt and so doesn’t see the need to file jointly.

First, the good news: In many situations a married person can file bankruptcy without her spouse, i.e., do the whole bankruptcy by herself without any negative impact on the non-filing spouse.

For example, if the couple was just recently married and they have not accrued any debts together, one can file without the other. Or, if a couple has been married a long time but all the debt is in one spouse’s name, that spouse may file by himself.

Caveat: It is extremely important, however, to get counsel from an experienced bankruptcy attorney when determining if one spouse can file without the other. There are many variables that can make it critical that spouses file jointly. In some circumstances filing separately is the best course, but not always.

California is a community property state. That generally means all property acquired and all debts accrued after marriage belong to both spouses. So even if a credit card or personal loan is just in one spouse’s name, the debt belongs to both spouses. Unless a careful analysis is done by an experienced bankruptcy attorney, a person filing without her spouse could do the bankruptcy and then have the creditor collect on her non-filing spouse. In that situation, the bankruptcy would not have the desired effect of freeing the family from debt and giving the household a fresh start.

To determine if you can file bankruptcy and if an individual or joint filing is better for you and your spouse, call the Law Offices of Brian Barta at (707) 542-2844 or email to BartaBK@sonic.net for a free bankruptcy consultation.

For more than 25 years, I’ve helped literally thousands of residents of Sonoma, Marin, Napa and Lake Counties file bankruptcy and get a fresh start.