Finances can be tough for married couples, and when one of the spouses incurs or comes into the marriage with more debt than the other, it can be a hard decision when it comes to filing bankruptcy individually or jointly. However, several considerations should be made before determining which way to go.
What Is Filing Jointly For Bankruptcy?
Filing jointly for bankruptcy means that the debts of both spouses, as well as the property of both spouses, will be considered in the bankruptcy. This would include debt and property acquired before marriage and during marriage. Texas is a community property state and any property or debt that is acquired by either party during the marriage is considered marital property.
What Is Filing Separately For Bankruptcy?
Filing separately for bankruptcy means that only one married spouse files a bankruptcy case. That person lists his or her separate debts brought into or incurred during the marriage, and any community property of the couple would be included, as well.
When it comes to claiming exemptions for property kept free from bankruptcy, that spouse would only be able to claim what a single person could claim. It is possible to file separately even though it does seem counter-intuitive since the couple is married.
Benefits To Filing Jointly
If the spouses have accumulated assets and debts since being married, it may a good idea that they file jointly sometimes. It may be too difficult to determine which assets are marital and which assets are separate property. In addition, filing together can reduce costs as only one filing fee and one attorney fee will be required.
If the spouse who owes most of the debt files separately first and then the other spouse files later, additional legal and filing fees will have to be paid. If the spouses agree to file jointly, they may include their respective separate debts in the joint bankruptcy as well.
One benefit of filing jointly is that couples can take advantage of bankruptcy exemptions to keep their property. Texas allows for exemptions for houses, cars and other items of personal property. The State of Texas allows married couples to double what they can exempt over what individuals filing separately can exempt.
Cons For Filing Jointly For Bankruptcy
If a couple wishes to file jointly but one spouse has recently gone through bankruptcy, (ie: within the most recent eight years for Chapter 7 bankruptcy or most recent six years for Chapter 13 bankruptcy), only the other spouse may be eligible to file a case now. Further, filing bankruptcy jointly may affect both spouses involved, meaning that the spouses credit scores will both be affected.
If the spouse who had the debt before marriage came into the marriage with a lower credit score while the other spouse carried a significantly better score, the couple should discuss whether the spouse with the lower score should file separately, sparing the other spouse.
Benefits To Filing Separately For Bankruptcy
If one of the spouses has come into the marriage with more debt than the other, it might be wise for that one spouse to file separately for bankruptcy. Further, if the couple has not acquired much in terms of community property, filing separately for bankruptcy might be wise.
Cons To Filing Separately For Bankruptcy
Keep in mind that if the couple decides to file separately, having only one spouse file, any community property that the couple owns will be included in the bankruptcy process.
It is for this reason that many choose to have the one person file for bankruptcy separately before deciding to get married, so that the property acquired later by both does not later get put into the bankruptcy estate. The separate property of the non-filing spouse will remain his or her separate property and will be clear from the bankruptcy estate.
A bankruptcy attorney can assist in weighing the pros and cons listed herein to help a couple determine the best course of action. Every case is different, and what works for one couple may not work for another.
CONTACT AN ARLINGTON BANKRUPTCY ATTORNEY FOR A FREE CONSULTATION TODAY
An experienced Texas bankruptcy lawyer can help you analyze your finances to determine the best way possible for managing your debt and can help address any concerns you have about the bankruptcy process. Call the Law Office of Marilyn D. Garner now at 817.381.9292 for a free consultation today.The information contained in this article is general in nature and should not be considered to be legal advice, consulting or any other professional advice. In all cases you should consult with professional advisors familiar with your particular factual situation for advice concerning specific matters before making any decisions. There is no assumption of responsibility or liability for errors or omission in the content of this site. The information is without guarantees of completeness, accuracy, usefulness or timeliness and without any warranty whatsoever, express or implied. There is no warranty that the site or information downloaded from this site will be error-free, omission-free or free of viruses.