How to Protect Your Finances when Your Spouse Files for Bankruptcy.

When your spouse files for bankruptcy, the bankruptcy should not affect your credit score. However, you may still be affected in other ways. For example, you will still have to pay off joint debts. Also, the bankruptcy trustee can seize any property your spouse owns, even if you are a joint owner. Accordingly, you and your spouse should carefully consider which bankruptcy is best for the family or whether you should pursue a non-bankruptcy option.

Part 1 Identifying Joint and Separate Property.

1. Identify all property you and your spouse own. When your spouse files for bankruptcy, they will have to list all of their property on a schedule and report it. The trustee uses this information to determine the size of the bankruptcy estate. This information is important because the trustee may be able to force your spouse to sell property in order to pay their creditors. The less property your spouse owns, the better off they will be.

Go through your possessions and estimate how much the property is worth. Also figure out who owns it.

As a spouse, you want to be on the lookout for property you jointly own with your spouse. Unless this property is exempt, it goes into your spouse's estate, which means you might lose it depending on the bankruptcy your spouse files.

2. Check if you live in a community property state. The ownership of certain property may depend on the state where you are living. Some states are “community property” states, and this means that any property you or your spouse acquired during the marriage is owned equally by both of you.

For example, you might have bought a car. In a community property state, the car is generally considered the property of both you and your spouse—regardless of whether your spouse is on the title.

The following are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Community property laws also apply in some situations in Alaska.

Because community property laws differ, you should work closely with a lawyer in your state to identify all property that will be counted as part of the bankruptcy estate.

3. Determine ownership in a common law state. If you don't live in a community property state, then you live in a common law state. In common law states, the owner is generally the person whose name is on the title. If your name alone appears on the title, then the asset probably will not be included in the bankruptcy estate.

If both names are on the title, then you and your spouse both own half of the asset and the asset will have to be listed as part of the bankruptcy estate.

The trustee might be able to force a sale of the asset if they can convince the judge that the benefit of selling the asset outweighs any detriment you will face. However, the trustee will still have to pay you the full-value of your half of the asset. The trustee can only use the portion your bankrupt spouse owned to pay their creditors.

4. Check if you own your home in “tenancy by the entirety.” This is a form of ownership in which the asset is owned by the marriage. Many couples own their home in tenancy by the entirety. Depending on your state, assets owned in this manner are exempted from the bankruptcy estate.

5. Identify bankruptcy exemptions. You can exempt property from being counted as part of your spouse's estate. Each state has bankruptcy exemptions which you can use. The federal government also has a list of exemptions. In some states, you can choose between the state or federal exemptions, whereas other states will require that you use the state exemptions.

In Missouri, for example, you can exempt up to $15,000 in a home that you live in or up to $5,000 in a mobile home. You can also exempt up to $3,000 in a motor vehicle.

Say you and your spouse jointly own a car in Missouri. If the car is worth $16,000, then your spouse has $8,000 in the car. Only $3,000 is exempt. Accordingly, the trustee might want to sell the car and use the $5,000 to pay off creditors. If the trustee sells the car, they must pay the spouse who didn't file for bankruptcy $8,000.

In some states, you can double an exemption if you file a joint bankruptcy petition so long as you both own the property. For example, if the state allows you to exempt $3,000 in a car, then you can exempt $6,000 if you and your spouse own it together.

6. Avoid transferring property. You might think you can protect your assets by having your spouse transfer them before filing for bankruptcy. If you live in a common law state, you might think you can make the transfer into your name so that you hold title to all of the family property and your spouse holds only the debts individually. Unfortunately, this tactic won't work.

Instead, your spouse must report all transfers. If your spouse transferred the property during the two years before they filed for bankruptcy, then the trustee can get the property back.

Your spouse will also get in trouble if they try to hide the transfer. Everyone files a bankruptcy petition under penalty of perjury. If caught lying, your spouse could be prosecuted and have the entire bankruptcy cancelled.

Part 2 Handling Joint Debts.

1. Identify your joint debts. You and your spouse might have joint debts. This means that you both have agreed to be 100% responsible for the full debt. Accordingly, if your spouse files for bankruptcy, you are not relieved of your responsibility for the debt. Although your spouse will have their obligation discharged, your obligation will not be. You will still remain responsible for the entire amount. Joint debts can be formed in the following ways.

You and your spouse took out the debt together.

You cosigned on a loan for your spouse.

You live in a community property state and you or your spouse took out a debt during the marriage.

2. Continue to make payments on your joint debts. If you have a joint debt—say, for your car—then you must continue to make payments on it, even if you are the spouse who didn't file for bankruptcy. If you stop, then your credit score will take a hit because your missed payments will be reported to the credit reporting agencies.

3. Consider filing a joint bankruptcy petition. You have the option of filing for bankruptcy along with your spouse. By doing so, you can discharge joint debts.[12] After a discharge, neither you nor your spouse is responsible for the joint debt.

Of course, a bankruptcy stays on your credit report for several years, and neither you nor your spouse will probably be able to secure new credit in the near future.

Nevertheless, a joint bankruptcy can be an excellent option if you have high joint debts which you have no way of paying off in the future. A joint bankruptcy can free you and your spouse of these crushing joint debts.

Part 3 Choosing the Right Bankruptcy.

1. Identify the different types of bankruptcy. U.S. law provides many different types of bankruptcies, but the two most common for individuals are Chapter 7 and Chapter 13. You should analyze which is best for you, depending on your circumstances.

Chapter 7. This is called a “liquidation” bankruptcy. In a Chapter 7, your spouse can wipe out all of their debts. However, in order to get that benefit, they generally must sell non-exempt property and use the proceeds to pay their creditors.

Chapter 13. In a Chapter 13, the debtor gets to keep their property. Instead of selling it, they will pay back creditors for three to five years. At the end of the repayment period, any remaining unsecured debts (like credit cards) will be forgiven. Chapter 13 is a good option if you have a lot of non-exempt property that is jointly owned.

Joint bankruptcy petition. A joint bankruptcy petition may be the best option if you and your spouse have large joint debts. You can file both Chapter 7 and 13 jointly.

2. Meet with an attorney. Only a qualified bankruptcy attorney can analyze your situation and identify the best course of action. You should get a referral to a bankruptcy attorney by contacting your local or state bar association. Once you have a referral, call up the attorney and schedule a consultation. Ask how much the fee will be.

Your attorney can help you think through which bankruptcy to file—or whether a different alternative would be best.

3. Consider alternatives to bankruptcy. Your spouse should consider other options. These options might be better because they will impact your spouse's credit score less severely. Also, you don't jeopardize losing property. Common alternatives include.

Get a debt consolidation loan. Sometimes you can get a low-interest loan which you use to pay off all debts. You then have one payment to make.

Transfer debts to low interest credit cards. Many credit cards give 12-month grace periods for balance transfers. Interest doesn't accrue until the grace period ends.

Create a repayment plan with your creditors. They might be willing to work with you, especially if you mention that you are thinking of filing for bankruptcy. In bankruptcy, unsecured creditors rarely get paid back 100% of what they are owed. For this reason, they may be willing to reduce the interest rate or extend payments over a long period of time so that you don't file for bankruptcy.

Use a credit counselor. Credit counseling services can help you negotiate with creditors and then consolidate debt. These counselors also help you come up with repayment plans you can afford.

Question : If my wife files bankruptcy, what happens to our jointly-owned house? How does this affect my loan on the house?

Answer : In a bankruptcy, all your debts are listed against all your assets. If your wife does not have sufficient assets to pay for her debts, then her half of the house can be seized. It can either be transferred as an asset to a creditor, or (forcibly) liquidated. But if the bank sells your house, you have to get your share. I.e. only her share can be seized. For a detailed calculation, contact an accountant.