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If only one spouse files for bankruptcy is the spouse that didn't file responsible for the debt

Jackson, WI |

My husband just filed bankruptsy on his own...most of his debt was prior to our marriage. We did have one loan together and we were told it would be a phantom discharge and now the company is coming after me for the money. I am unemployed. Can they do this...should I agree to making the payments or wait til they take me to court to get the money. Seems a little fishy to me!!

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Attorney answers 1


Generally, when two parties are obligated on a debt and one of them receives a bankruptcy discharge, the other party remains liable for the debt. However, there is a phenomenon that occurs in community property states whereby the debt, although theoretically still valid as against the other spouse, is uncollectable as a practical matter so long as both spouses are alive and remain married. This occurs because any assets from which the other spouse might be able to make payment of the debt are community property, and so protected due to the discharge of the spouse who filed for bankruptcy.

Note, however, that I am not licensed to practice law in Wisconsin and am not familiar with Wisconsin law. Although Wisconsin is generally referred to as a community property state, each state's laws may differ somewhat. The best course of action for you would be to contact your husband's bankruptcy attorney and ask him or her whether or not the creditor can proceed against you. If the answer is no, there may be recourse available to you beyond simply making them stop harassing you.

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