Do I have to file bankruptcy with my spouse?

Typically, husbands and wives incur joint credit card bills, medical bills and other bills. A joint bill means that both the husband and wife are liable for the entire bill. The bill collector can pursue either spouse for the entire balance of the bill. A spouse who is only an “authorized user” on a credit card is liable for the amount of charges made by that person on that account. In that instance, the bill collector can pursue the “additional user” for his or her charges.

Bankruptcy law allows married couples the option to file a joint bankruptcy. Also, one spouse can file for bankruptcy while the other does not. If a husband and wife file a joint bankruptcy, then both spouses will receive a discharge from both their individual debts and joint debts. If only one spouse files bankruptcy, then only the filing spouse will receive a discharge of individual and joint debts.

When only one spouse files bankruptcy, the non filing spouse will remain liable for his or her individual debts. Additionally, the non filing spouse will remain responsible for any joint debts. What this means is that the bill collector will still be able to pursue the non filing spouse for the balance on the joint bill. Also, a non filing “additional user” on a credit card bill will still be responsible for the charges he or she made on that account. Your spouse filing bankruptcy will not discharge your debts or your obligation under any joint debts. You can only discharge your debt obligations by filing your own bankruptcy or a joint bankruptcy with your spouse.

Even if only one spouse files bankruptcy, the non filing spouse’s income and expense information is required to prepare the bankruptcy petition. (Unless the couple is separated.) Therefore, if only one spouse files bankruptcy, the filer will still need cooperation from the non filing spouse in regards to preparing the bankruptcy documents. As always, you should contact your local bankruptcy attorney for input on filing bankruptcy when you are married.

Will my employer find out if I file bankruptcy?

Many people are concerned that their employer may find out that they have filed for bankruptcy. Bankruptcy filings are public records. As such, anyone who wants to search the bankruptcy court clerk’s records can find out if someone has filed bankruptcy. The typical employer does not do this. Reason would indicate that if someone were to go to such lengths to find out if someone has filed bankruptcy, they must have been notified of a filing in the first place.

An employer will not be notified of a filing of bankruptcy unless they are listed in the bankruptcy petition schedules (as a possible creditor or if you have a claim against them), or if you notify them yourself. Otherwise, they do not receive notice of a filing from the bankruptcy court clerk. In some chapter 13 bankruptcies, the Debtor’s chapter 13 plan payment is made by wage order. In that instance, the employer would be notified of a bankruptcy.

Also, the law prohibits government and private employers from discriminating against an employee for filing bankruptcy or not paying a dischargeable debt. If you have specific questions about how filing bankruptcy may affect your employment, consult you local bankruptcy attorney.

Maxing out credit cards immediately before filing a bankruptcy.

If a credit card company notices significant charges or cash advances on an account prior to filing bankruptcy, the company does have the option to file a complaint asking the Court to determine that those purchases should not be discharged in a bankruptcy petition.

Bankruptcy Code section 523(a)(2) addresses these types of credit card transactions. If a debtor purchases more than $600.00 of luxury goods or services (goods or services not reasonably necessary for the support or maintenance of the Debtor or dependent of Debtor) within ninety (90) days prior to filing bankruptcy, those purchases are presumed to be non-dischargeable. Additionally, if a Debtor takes out cash advances of more than $875.00 within seventy (70) days of filing bankruptcy, those cash advances are also presumed to be non-dischargeable. What that means is that if a Creditor files a complaint against the Debtor alleging those circumstances, the debt is presumed to be non-dischargeable and the burden then falls to the Debtor to prove circumstances why it should be discharged in the bankruptcy.

Also, a credit card company could argue that the charges on credit were obtained by false pretenses, false representation, or actual fraud. The credit card company would have the burden to prove those facts to the Court. The likely argument is that because of the Debtor’s financial circumstances at the time when they used the credit card, they were not in a financial position to pay back any of these purchases and had no intent of paying the credit card company back, and as a result, those debts should not be discharged in the bankruptcy.

Therefore, if a credit card company notices significant cash advances or charges prior to filing bankruptcy they will look to that provision of the Bankruptcy Code to determine whether it is in their best interest to file a complaint against that Debtor and request the Court to find those debts to be non-dischargeable in the bankruptcy. Contact your bankruptcy attorney to discuss whether purchases immediately prior to filing bankruptcy will raise issues with a Creditor and result in a possible complaint filed by the Creditor asking the Court to determine those debts non-dischargeable.