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What if your husband filed bankrupcy before you were married? Can the spouse file? are his bills considered?

Saint Cloud, MN |

I'd like to file ch 7 but I don't know if he will be included.

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Attorney answers 2


You can file a bankruptcy without him. Your total household income will be reviewed to satisfy something called the "MEANs test" (notice my emphasis on "mean"). If your household income is greater than average for its size in your state, then his bills and expenses will then become a factor in going through the means test. He will not be filing bankruptcy, but Congress has decided that we have to get into everyone in the house's financial business if even one wants to do a bankruptcy (that started in 2005 when we got our new 100% bank-written law). Any debt he has will not be discharged and any debt you two have together will remain his responsibility after your bankruptcy is over. So if you have debt on your own that he is not on, you can Chapter 7 that. If the debt you have now is in both names, then it may be wise to consider doing a joint Chapter 13 (you can do a 13 after you've done a chapter 7) to try to manage what gets paid to that debt.

Hope that helped and good luck!


Whether he can file depends on the Chapter he filed previously, whether he got a discharge and how long ago it was. If he filed a prior Chapter 7 and got a discharge, then he cannot file again for 8 years since the filing of the prior case.

Having said that, your household income and household expenses will be considered (even if he does not file). If he is not filing, the expenses that he has that are not part of the household, especially those that will not be discharged, can be considered. You will also need this information for the means test as has already been said. Again, his expenses that are not household expenses may qualify for deduction as a marital adjustment on the means test if you make more the median standard income for a household your size in your area. Those deductions may bring you below that number leading to your not having to complete the means test.

Consult a bankruptcy attorney in your area. Bring proof of income for the last 6 months for both of you. Your attorney will need to know what you own, what it will sell for, and what you owe on it. Also bring your last year's tax return and a list of expenses. Bring all of this in addition to whatever else the attorney tells you. The more information that you provide in a consultation, the more the attorney can help you. Your spouse's bankruptcy, regardless of when he filed, should never affect your ability to file.

Good Luck

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