File Joint or Single?

[qwerty64]

Can a married person file a solo BK petition or must you file jointly?

I'm in the middle of a contentious divorce with no end in sight. Meanwhile, creditors are threatening legal action. My spouse is very much against filing BK while I think it offers a "fresh start" and I can shelter my retirement savings.

So . . .
Am I forced to wait for a divorce decree - which she seems content to stall forever - or can I file solo and let her fend for herself?

[shark66]

You can file by yourself. Speaking from first-hand experience since I'm married and have filed by myself.

Do bear in mind that unless you're legally separated, your spouse's income (and expenses) will need to be in the picture, fully disclosed in your petition.

Given that you're already in the middle of a divorce, I'd search help from an experienced BK attorney in your area if I were in your position.

Good luck.

[bcohen]

You are really asking two separate questions here:

1. Can a married person file bankruptcy alone?

2. Can YOU in your special circumstances file bankruptcy alone?

The answer to #1 is absolutely. A person who is married now, but had incurred a lot of debt before the marriage can (and should) file on their own to avoid damaging their spouse's credit. Likewise, in some states, a person who is married, but only has the debts in their sole name can file for bankruptcy alone, and the debts will be discharged.

However, the answer to #2 is probably not, and you really need to see an experienced attorney to protect your rights both with regard to the divorce, and the (proposed) bankruptcy filing. Remember that if you file bankruptcy now, and then incur further debts as a result of the divorce, or your wife's irresponsible behavior while you are still legally married, you won't be able to add those debts to your bankruptcy, and will end up having to pay for them. Therefore, you should absolutely wait until the divorce is final before even thinking about filing for bankruptcy.

That being said, you would really need to give us more information as to what creditors are coming after you, and what "legal action" is being threatened. If these are unsecured creditors (which would include credit cards, or charged-off vehicle loans or home equity loans) then the only "legal action" they can attempt is to sue you and try to get a judgement, which would be dischargeable once you file for bankruptcy. Your retirement accounts are protected from garnishment by a judgement creditor, just as they would be during bankruptcy.