Yes. One spouse can file for bankruptcy without the other, and such filings occur in Florida. However, there are many specific details to consider before deciding to file individually.
It’s crucial to speak with an experienced attorney to plan your path forward. The Florida bankruptcy attorneys at Loan Lawyers have helped many people through this process and can explain everything you need to know about filing for bankruptcy without your spouse.
Below, we cover some of the details you need to know about ways you can file for bankruptcy, how your options may affect your spouse, the difference between Chapter 7 and Chapter 13, bankruptcy costs, and what to expect in a consultation.
When Should One Spouse Consider Filing Bankruptcy Alone?
Many couples in Florida choose to file for bankruptcy together. However, there are situations where filing for an individual bankruptcy could make more sense:
- A spouse has significant debts that are solely in their name
- The couple has kept their finances separate and has the documentation to prove it, although both spouses’ incomes may still be considered.
- There’s a prenuptial agreement that includes terms related to shared or individual debts
- One spouse has recently filed for bankruptcy and is not yet eligible to discharge their debts
- A couple is getting divorced
None of these conditions automatically make it best to file alone for bankruptcy. Read our guide to bankruptcy for married couples for a breakdown of joint vs. individual bankruptcy.
Chapter 7 vs. Chapter 13 When Only One Spouse Files
The two most common types of personal bankruptcy are Chapter 7 and Chapter 13. Which one you ultimately decide to file can determine how your non-filing spouse is affected.
Filing Chapter 7
Only individuals or couples who meet certain income and eligibility requirements qualify for Chapter 7 bankruptcy. If you file Chapter 7 without your spouse’s participation and live in the same house, their income generally still counts toward determining whether you qualify, even if they aren’t filing. Including your spouse’s income could mean you don’t qualify.
If you qualify for a Chapter 7 bankruptcy, you could have some or all of your individual debts discharged, which means you would no longer owe them. Your creditors can still pursue legal action against your spouse for debts you jointly own or that your spouse co-signed on.
Creditors might pursue joint debts such as a car loan, a home mortgage, or a home equity loan. It’s important to understand that your discharge doesn’t clear your spouse’s debt, so a creditor may look to them for the full balance.
Filing Chapter 13
One difference in a Chapter 13 bankruptcy filing is that federal bankruptcy law includes something called a co-debtor stay. A co-debtor stay means that while your case is active, creditors are temporarily prevented from pursuing legal action to collect specific consumer debts from other parties who are also responsible for them, including a spouse not filing bankruptcy.
This temporary protection includes debts such as credit card payments and medical bills. The protection has limits:
- It covers only personal and household debts, not business debts.
- It pauses collection but doesn’t erase the debt.
- It generally lasts only while your case is active.
- A creditor can ask the court to lift it, for example, if your plan won’t pay the debt in full.
There are also potential downsides to a Chapter 13 bankruptcy. Once you and your creditors agree on a court-approved repayment plan, you need to be diligent in making those payments.
Falling behind can put your case at risk of dismissal, and if that happens, creditors may resume collection, including on debts you owe jointly with your spouse.
How Can Filing Bankruptcy Affect the Non-Filing Spouse?
When one spouse files an individual bankruptcy while married, the impact on the other spouse depends on whose name is on each debt. Generally, a spouse isn’t legally responsible for a debt and can’t be pursued for it, while a spouse who shares legal responsibility for a debt can still be pursued for it after your case ends.
Shared debts: Anything you and your spouse both owe together remains your spouse’s responsibility after your discharge. Creditors can turn to your spouse for payment, even though they can no longer collect from you.
Debts in your name alone: Marriage doesn’t automatically make your spouse liable for debt where you are the only one who signed, but there are exceptions. Keeping good records can help you demonstrate whether a spouse was included on a specific debt.
Spouse income bankruptcy rules: A spouse who isn’t filing can still affect your case. When the court checks to see if you earn a low enough income to qualify for Chapter 7, it generally counts your spouse’s income as well. In Chapter 13, their income can change how much you pay toward a debt each month.
If your spouse keeps part of their pay for their own expenses instead of household bills, that part may not be counted. Couples who live apart could be treated differently.
Credit scores: Your filing doesn’t become a bankruptcy on your spouse’s record. If there are accounts that only your spouse holds, they will generally stay out of the bankruptcy. Shared accounts are the exception and may also appear on their credit report.
Property: What happens to your belongings depends on whose name they are under, which exemptions apply under bankruptcy law, and other specific details. In Florida, a home or other asset you own together deserves careful review with an attorney before you file.
Many couples have only one spouse file for bankruptcy. Clear documentation of which spouses are responsible for individual or shared debts is crucial. These records can help the non-filing spouse avoid collection actions by creditors on debts that aren’t theirs. An attorney can review each of your debts and guide you on the best strategy to alleviate financial stress.
What Could Individual Bankruptcy or Another Option Cost?
There’s more to the cost of bankruptcy than an attorney’s fee. You may face costs related to:
- Fees and required steps: This includes court fees, any classes required, and your attorney’s fee, which will vary depending on the type of bankruptcy and the level of complexity of your case.
- Your credit. A bankruptcy can stay on your credit report for up to 10 years. Shared accounts included in your case could also affect your spouse’s credit.
- Shared debts. If only you file, creditors on debts you share may shift their focus to collecting from your spouse.
- Your household’s finances. A Chapter 13 plan will require years of monthly payments. In Chapter 7, some property may be sold to pay creditors.
Bankruptcy isn’t always the right—or least expensive— answer. Depending on your situation, debt defense, negotiating or settling with creditors, or foreclosure defense may make more sense, though every decision comes with potential costs and risks.
An attorney can help you compare options side by side for the realities of your household.
What Happens During a Bankruptcy Consultation?
A consultation with one of our Florida bankruptcy attorneys gives you the opportunity to ask questions and reflect on your options before you commit to anything. Here is what to expect.
- Review your individual and household financial situation, considering your income, your spouse’s income, your individual and shared debt, what you own, and any collection activity that’s already begun.
- Compare your different filing options, whether you should file together or alone, or if there are better options besides bankruptcy for your situation.
- Understand your costs and next steps, including potential financial impact, what attorney fees would apply, and what happens next if you move forward.
To see how a case moves along after that, read about the bankruptcy process.
Ready to Talk Through Your Options?
Ready to Talk Through Your Options?The choice of whether to file alone, together, or to avoid bankruptcy completely can be dizzying. Let the attorneys at Loan Lawyers help you weigh each path for your whole household. See what past clients have said in our testimonials, and browse more answers in our FAQ hub.
Schedule your free consultation today or call us at 954-523-4357.
Frequently Asked Questions About Filing Bankruptcy Without a Spouse
Does my spouse have to file bankruptcy with me?
No. One spouse can file alone, and the other isn’t required to join the case. Shared debts, property owned together, and household income can still affect the bankruptcy case, so it’s worth going over how each obligation is held before you decide whether to file alone or together.
Will my spouse’s credit be affected by my bankruptcy?
Your filing doesn’t become a bankruptcy on your spouse’s credit record, and accounts held only by them generally are treated separately. However, shared accounts may affect your spouse’s credit as well, and creditors may look to them for payment on shared debts.
Does my spouse’s income count if I file alone?
Often, yes. When you live together, your spouse’s income generally counts toward the Chapter 7 income limits and can affect your Chapter 13 payment plan.
What happens to our joint debts if only I file?
With joint debt, bankruptcy may wipe out your own responsibility, but your spouse is generally still responsible, and a creditor can pursue them for the balance. In Chapter 13, a co-debtor stay may temporarily pause collection from your spouse on certain personal debts while your case is active. The stay is not a permanent fix, and your spouse may later have to resume payments.
Can I file Chapter 7 without my spouse?
Yes, if you qualify. Chapter 7 has income limits, and your spouse’s income may be counted even though they aren’t filing. Debts you owe together stay your spouse’s responsibility after your case ends, so it’s worth reviewing them with an attorney before filing.
Can I file Chapter 13 without my spouse?
Yes, if you qualify. If you file Chapter 13 without spouse participation, you’d propose an individual repayment plan that runs three to five years. During that time, the co-debtor stay may temporarily protect your spouse from collection on certain personal debts, though the protection has limits and a creditor can ask the court to lift it in certain cases.
