The short answer is yes. One spouse can file bankruptcy without the other, however, the non-filing spouse can be affected by the bankruptcy if there is joint debt or joint property. Because a bankruptcy filing by one spouse does not bring the other spouse into bankruptcy, the non-filing spouse does not get the protection of the automatic stay or the bankruptcy discharge. Consequently, a creditor can look to the non-filing spouse for payment. One exception is a bankruptcy under Chapter 13 if the debt is a consumer debt and the repayment plan calls for the debt to be paid in full. However, if the debt is not paid in full, a creditor can go after the non-filing spouse for the outstanding balance.

In order to determine whether a bankruptcy filing will affect a non-filing spouse, you need to look at the contracts for the debt. Only individuals who signed the credit application or loan are liable for the debt. Marriage alone does not make both spouses personally liable for a debt except in the case of tax debt where a joint tax return was filed. Debt to credit card companies can be particularly troublesome if the company obtained and placed your spouse’s social security number on the account. The credit card company may attempt to use social security number as proof of ownership of the debt. Another area of concern is jointly owned property. How the property is affected by the bankruptcy will depend on the how it is titled and the Chapter of Bankruptcy being sought. As always, you should contact a bankruptcy attorney to discuss these issues before filing for bankruptcy particularly if only one spouse will be filing.

- Richard V. Stokan, Jr.