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I Want to File Bankruptcy but My Spouse Doesn’t. What Should I Do?

Good news. You CAN file without your spouse. Although your spouse does not need to file with you, you will need some of his or her information in order to complete your bankruptcy petition.
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The Bankruptcy Abuse and Consumer Protection Act of 2005 requires that you include your spouse’s income in the means test calculations. The means test is based on the medias income by family size as well by IRS standards.

In 11 U.S.C. 101 (10)(A), the bankruptcy code defines “current monthly income” as:

1. the average monthly income from all sources that the debtor receives (or in a joint case, the debtor and debtor’s spouse receive) without regard to whether such income is taxable income, derived during the 6-month period prior to filing.

2. Includes any amount paid by any entity other than the debtor (or in a joint case the debtor and debtor’s spouse) on a regular basis for the household expenses of the debtor or the debtor’s dependents (and in a joint case the debtor’s spouse if not otherwise a dependent).

3. Excluding payments under the Social Security Act among a few other categories

What does this mean?

What this means for you is that if you want to file without your spouse, you can but you must include your spouse’s income contributions to the household in your Form 22 Means Test. You may also deduct expenses that are only your spouse’s on line 17 under the marital adjustment. Examples of possible deductions include a spouse’s student loan payment or a spouse’s charitable contributions. This effectively reduces the amount that your spouse contributes to the total household income.

Also, in the Southern District of Ohio, Local Form 1015-2 requires that you disclose whether your spouse has filed for bankruptcy in the 8 years prior to your filing. If so, then you must also disclose the name of your spouse, case number, date filed, chapter, district and division filed, current status, whether there was real estate in the case and the name of the judge assigned to that case.

One final thing to consider is whether your spouse is a co-signor on any of the debts you plan to discharge. If so, the creditor may pursue your spouse once you receive your discharge.

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