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Can I File for Bankruptcy without My Spouse?

Bankruptcy without SpouseBankruptcy without My Spouse

Bankruptcy is an option for single people or married people to get their finances back on track. In many cases, a married person’s finances are tied to his or her spouse, so they’ll file together. But it’s possible to file for bankruptcy without your spouse and for some couples, doing so is advantageous.

Here’s what you need to know:

Determining whether or not to file as a couple is based on a few things, including whether or not both spouses want to file and the overall debt and assets of the entire household. Where you live and whether or not it’s a community property or common law or equitable distribution state is also important (Florida is the latter), as is the status of your relationship. This is especially true if you are in the process of or considering divorce.

Who Owns Your Assets?

One of the reasons why people choose to file for bankruptcy separately when they are married is based on the ownership of their property. As we already mentioned, Florida is a common law state. This means any property acquired during your marriage solely belongs to the person who paid for it unless it was a gift.

What Does This Mean When It Comes to Filing for Bankruptcy without My Spouse?

In states that are community property states, a spouse filing for bankruptcy puts assets that were acquired during the marriage regardless of who paid for them at risk for seizure. Everything becomes part of the bankruptcy estate. This is true even if they were purchased jointly or purchased by the spouse not filing for bankruptcy.

But as a common law state, this isn’t the case in Florida. Only the property owned by the spouse who purchased it and any interest in the jointly-owned property is part of the bankruptcy estate. If only one spouse files, the bankruptcy estate doesn’t include the non-filing spouse’s property and therefore is not at risk for seizure.

It’s also possible for both spouses to file for bankruptcy at the same time separately and create their own set of exemptions. In some cases, this doubles the number of exemptions available to the case.

It should be clear that there are certain situations in which it would be very advantageous for both spouses to file for bankruptcy separately. Whether or not this is the case for you is based on your specific circumstances. You should review the situation with an attorney.

To learn more about common law and other bankruptcy laws in Florida, check out this information from NOLO.com.

Do the Rules about Property Also Apply to Debt?

In Florida, one spouse’s debts are separate from the others. You do not absorb responsibility for your spouse’s existing debt when you marry. It never becomes your responsibility even when you marry. Keep in mind, this applies only to the legal ramifications of the situation. Your spouse’s debt could affect your overall financial situation. You just won’t need to pay your spouse’s debt on his or her behalf.

This is also not to say that one person filing for bankruptcy doesn’t affect shared debts. If you and your spouse are co-debtors on a given loan, you will receive automatic stay protection on that debt and the bankruptcy discharge could affect that debt.

Again, you’ll need to discuss your specific circumstances with your attorney.

If you’d like to know more about filing for bankruptcy with or without your spouse or you have questions about bankruptcy in general, we can help. Contact the Law Office of Robert M. Geller at 813-254-5696 for more information.

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