My spouse is filing for bankruptcy. Should I file for bankruptcy with him? Do I have to?

Often people incorrectly assume that if their spouse files for bankruptcy, they have to file, too. However, a person can file for bankruptcy individually, separate from his or her spouse. Even though you may file a joint petition for bankruptcy with your husband, you are not required to do so.  

In some circumstances, it is not desirable to file a joint petition. When one or both of the spouses were previously married, for example, only one spouse may be in debt. In this situation, there is no need for both people to file for bankruptcy. If the debts are shared, however, it may be in your best interest to file a joint petition with your spouse. If you are jointly responsible for the debts, the spouse who does not file for bankruptcy remains liable as a co-debtor, and may be pursued by creditors. Also, it costs the same amount to file individually or jointly, so by filing a joint petition, you will save money on fees, such as filing fees and lawyers’ fees. Federal bankruptcy laws provide special circumstances for spouses who wish to file jointly for bankruptcy. 

For more information, see: 11 U.S.C. §§ 109(a), 302 (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (3rd ed. 1999); James W. Martin Jr., Bankruptcy, in The West Virginia Practice Handbook Vol.1 (The West Virginia State Bar, Young Lawyers’ Division, eds., 4th ed. 1996).