Married couples don’t have to file bankruptcy together. Depending on their situation, it may make sense for only one spouse to file. This article explains what information the filer needs to include with respect to their spouse’s income and expenses.
Written by Attorney Karra Kingston.
Updated May 3, 2021
If you are filing a Chapter 7 bankruptcy, and both you and your spouse file your taxes together, then you will need to include your spouse’s income and expenses on your bankruptcy forms. In short, if you and your spouse both maintain the same household, then you must include your spouse’s income. If, however, you both live separately and maintain separate households then your spouse’s income does not need to be included. Keep in mind, that even when you must include your spouse’s income in your bankruptcy, this does not mean that you must file bankruptcy together.
Note: A spouse is someone you are legally married to. If you and your significant other are not married but combine all or part of your income to pay for shared household expenses, their share is included as an outside contribution.
There are four places where your spouse’s income and expenses will need to be included when completing your bankruptcy forms. Official Form 106J, Schedule J , Official Form 106I, Schedule I, Official Form 122A, Means Test and Official Form 107, Statement of Financial Affairs. Let’s take a look at each of these sections.
Schedules I and J
Schedule I and Schedule J, will ask for both, you and your spouse’s income and expenses. In Schedule I, you will need to include your spouse’s employment information such as their position, the address of their employer and how long they have been working there. You will also need to disclose all of your spouse’s income sources and deductions. This includes wages, social security, disability, rental income, or business income. On Schedule J you will need to provide all of your monthly household expenses. Household expenses include any expenses that both you and your spouse pay every month for the benefit of your household. This includes things like your mortgage or rent, car payments, insurance, food, gas, water, and any other utilities. Keep in mind, if you spouse has a car and you don’t, you should still include your spouse’s car payment, because it’s an expense your household pays each month. All expenses that either you or your spouse pay each month should be listed on Schedule J.
The Means Test
The next place that you will need to include your spouse’s income is on Official Form 122A, The Means Test. The Means Test determines whether you qualify for a Chapter 7 bankruptcy. Congress enacted the Means Test to stop people from filing bankruptcy even though they could afford to pay at least some of their debts. The first part of the Means Test compares your household income to the state’s median household income for a household of your size. Even if your spouse is not filing bankruptcy, you will still be required to include your spouse’s income the calculation of your household income.
If you do not qualify under the first part of the Means Test because your household income is too high, then you need to go to the second part of the analysis which will take into consideration your deductions and monthly expenses. Even though your spouse is not filing bankruptcy with you, all predetermined monthly expenses, such as housing, utilities, and food, count your spouse as a member of your household. This offsets your spouse’s income in the same way as if they filed bankruptcy with you.
Note: The second part of the means test is only required if your household income exceeds the median household income in your state. While this is good news for you (you make more than half the households in your state), it unfortunately means that Upsolve can’t help. It will require an in-depth means test analysis to determine whether you qualify for Chapter 7 relief. Upsolve can connect you to a bankruptcy lawyer in your area for a review of your situation.
The Marital Deduction for Non-Filing Spouses
You may be concerned that since your spouse’s income has to be included in the Means Test, you may not qualify for a Chapter 7 bankruptcy. However, you still may be able to qualify for a Chapter 7 bankruptcy if, by using the marital adjustment deduction, you can show that your household income is not enough to meet your financial obligations. The marital deduction helps people qualify for bankruptcy if their non-filing spouse has significant income but does not contribute all of it to the household’s expenses. The marital adjustment deduction allows you to deduct any expenses that your non-filing spouse pays that are separate from your household expenses. In other words, the Means Test takes into account that your spouse may not spend all of his or her income on your household expenses. Some examples of expenses that may be considered marital deductions may be credit card payments that your non-filing spouse will have to continue paying after your bankruptcy is completed, payments towards monthly grooming expenses such as haircuts and manicures, student loan payments, uniforms, domestic support obligations etc.
If you do plan to use the marital deductions, be prepared to show proof in the form of documents to back up your spouse’s monthly expenses. After all, the marital deduction can make the difference on whether you qualify for a Chapter 7 bankruptcy. That’s why both the case trustee and the Office of the U.S. Trustee may closely review this section to ensure your marital deductions are both, actually being paid by your spouse and reasonable. Make sure that you keep all supporting documents such as receipts or statements to show what your non-filing spouse pays for separately.
Statement of Financial Affairs
The Statement of Financial Affairs (Official form 107) asks about your income in part 2 of the form. Although it asks about your spouse's income, you're only required to provide this information if you're filing Chapter 12 or Chapter 13 bankruptcy.
If you're thinking about filing bankruptcy and your spouse does not want (or need) to file with you, don’t let that stop you. While you do have to include your spouse’s income to calculate your household income, your bankruptcy should have no effect on your spouse if they are not filing with you.
Can Upsolve help?
Upsolve is a non-profit legal aid organization that has helped many people file for bankruptcy without the help of an attorney. If you are looking to file Chapter 7 bankruptcy without your spouse but are not quite sure about the next steps, visit our learning center, or check out one of our many guides on how to file for bankruptcy and related questions. If you’re eligible, Upsolve can help you prepare your forms to file your case without having to hire an attorney. Even if you’re not eligible to go through our process, our resources are always free and we can even help you find a lawyer.