Do I Need To Include My Spouse’s Income and Expenses on My Bankruptcy Forms?

You already know that you must provide detailed information about your income and expenses when you prepare your bankruptcy forms. But what about your spouse — should you include their income and expenses as well? 

If you’re filing bankruptcy jointly with your spouse, the answer is always yes — you must include information for both of you on every bankruptcy form you submit. Things get more complicated, though, if you’re filing bankruptcy without your spouse or if you and your spouse live in separate houses. This article covers each bankruptcy form where your spouse’s financials could be required and whether to include your spouse’s information on each.

Spouses and Bankruptcy: The Basics

In bankruptcy law, your spouse is someone you’re legally married to. If you’re separated from your spouse but not divorced, you’re still married according to the Bankruptcy Code. Conversely, if you and your significant other live together but aren’t legally married, you can’t claim them as a spouse. That’s true even if you share your incomes and household expenses. You’ll still count their contributions, but they’ll be considered as a roommate for bankruptcy purposes.

Joint Bankruptcy

Under the Bankruptcy Code, only spouses can file a joint bankruptcy. Joint bankruptcy is when you both file bankruptcy together. You’ll submit one set of forms containing both of your information, and you’ll only have one case number, one filing fee, and one meeting of creditors. Although you must be legally married to file jointly, you aren’t required to live together. You can still file a joint bankruptcy if you’re separated or even while your divorce is pending but not once your divorce is final.

Separate Households

As a default rule, if you and your spouse share a household, you likely need to include their income and expenses. Bankruptcy law presumes that if you and your spouse share a household, then you also share living expenses. The law also presumes that you pool your resources, meaning both spouse’s incomes are available to use toward either spouse’s expenses and debts. If you live in separate households, regardless of whether you’re legally separated or not, you usually don’t need to include their information.

Of course, these presumptions aren’t always correct. If they don’t apply to your situation, you can explain this in your bankruptcy forms. And, as with any default rule, there are always exceptions. These are covered in more detail later.

Forms To Watch For

If you and your spouse are filing jointly, you must include information for both of you on every form. If you’re filing bankruptcy and your spouse isn’t, there are three bankruptcy forms where your spouse’s income and expense information might still be required. The first two, Schedule I and Schedule J, are the same in both Chapter 7 and Chapter 13 bankruptcy.

The third form is different depending on which type of bankruptcy you file:

• In Chapter 7 bankruptcy, it’s the Chapter 7 Statement of Your Current Monthly Income (Form 122A-1). This form has a second part, the Chapter 7 Means Test Calculation (Form 122A-2). Your calculations on the first part of the form determine whether you have to complete the second part.

• In Chapter 13 bankruptcy, the third form is the Chapter 13 Statement of Your Current Monthly Income and Calculation of Commitment Period (Form 122C-1). This form also has a second part: the Chapter 13 Calculation of Your Disposable Income (Form 122C-2). Like in Chapter 7, whether you must complete the second part depends on your responses in the first part.

Schedule I: Your Income

Schedule I is where you tell the bankruptcy court about your income from all sources. Your Schedule I should include:

• Details about your occupation and your employer (if you have one)

• Your monthly gross income and any payroll deductions or business expenses

• Any alimony or support payments you receive for yourself or your dependents

• Any contributions you regularly receive from a roommate or other person

• Any income you receive from any other sources, such as unemployment, a pension or retirement, Social Security, or rental income

If you’re separated but you’re filing a joint bankruptcy case, you must include income information for both of you. If you’re separated and not filing jointly, you don’t need to include your spouse’s information.

Schedule J: Your Expenses

The purpose of Schedule J is to show the court where all the income you included in Schedule I goes each month and how much is available to pay your creditors. 

Ongoing Expenses

Your Schedule J should include your ongoing expenses, such as rent, utilities, and groceries. Don’t include any expenses that you already deducted from your income on Schedule I, such as taxes, insurance, or business costs. 

If your spouse or anyone else pays part of your household expenses, and you listed their contributions as income on Schedule I, include the full expense (not just your share) on Schedule J. For example: Your rent is $1,200. You and your spouse pay $600 each. If you included your spouse’s income on Schedule I, then you should list $1,200 as your rent expense on Schedule J, even though you only pay $600.This doesn’t apply if you and your spouse are filing separate Schedule J forms, which are discussed later in the section.

Debt Payments

Schedule J should include your monthly payments on secured debts, such as a mortgage or car note, and priority debts, such as past-due child support or taxes. Schedule J estimates your expenses going forward, after filing bankruptcy. That means:

• Don’t include any payments for unsecured debts, such as credit cards and medical bills, since you won’t be paying those after you file bankruptcy. 

• Don’t include payments for secured debts if you intend to surrender the collateral through your bankruptcy.

• In a Chapter 13 case, don’t include anything you’re going to pay through your Chapter 13 plan.

• If your spouse isn’t filing bankruptcy with you, you should still include their debt payments since they won’t be wiped out by your bankruptcy.

Your Spouse’s Individual Expenses

If you and your spouse live together, and you included their income on Schedule I, you should include their expenses on Schedule J, even if you’re not filing jointly. In addition to shared expenses and debt payments, you should also include your spouse’s individual expenses. Some examples are:

• Payments on a credit card that’s only in your spouse’s name

• Your spouse’s out-of-pocket medical expenses

• Child support payments your spouse pays to someone else (not you)

If your spouse isn’t filing bankruptcy with you, their expenses don’t have to be reasonable by bankruptcy court standards. But don’t invent or inflate your spouse’s expenses. Your trustee could ask for proof of your spouse’s expenses even if they haven’t filed bankruptcy. Only include your spouse’s expenses if you included their income on Schedule I.

Separate Expenses

If you didn’t include your spouse’s income on Schedule I because you’reseparated and not filing together, then don’t include their expenses on Schedule J. 

If you and your spouse are filing a joint bankruptcy but you live in separate households, you must each complete your own Schedule J. Whoever is listed on the bankruptcy forms as “Debtor 2” should complete a separate form called Schedule J-2, which is identical to Schedule J. 

Chapter 7 Statement of Current Monthly Income and Means Test Calculation

Your Statement of Current Monthly Income includes all income received in the six months before you file bankruptcy. Some types of income are excluded from this form, such as Social Security income, federal disability income, and federal death benefits. You must include your spouse’s income on this form if:

• You’re filing a joint bankruptcy, regardless of whether you live together or separately 

OR

• You live in the same household, regardless of whether your spouse is filing with you or not

Don’t include your spouse’s income on this form if you live in separate households and aren’t filing jointly. If you include your spouse’s income, don’t include payments made from one of you to the other (such as alimony) as income. 

The Means Test

If your household income, as shown on your Statement of Current Monthly Income, is higher than the applicable median income, you must complete the Chapter 7 means test to determine whether you qualify to file Chapter 7 bankruptcy. 

Whether to include your spouse’s income or not will depend on your individual situation. If you and your spouse are:

• Filing jointly and living seperately — yes, include both of your incomes and separate living expenses.

• Filing jointly and living together — yes, include both of your incomes and expenses.

• Not filing jointly and living separately — no, you don’t need to include your spouse’s income or expenses.

• Not filing jointly and living together — complete Item 3, the marital adjustment section, of the means test form.

The marital adjustment section of the means test form allows you to itemize any amounts your spouse typically spends other than household expenses for you and your dependents. This is similar to listing your spouse’s separate expenses on Schedule J. Some examples of separate expenses include:

• Taxes, insurance, retirement, and other deductions taken out of your spouse’s paycheck

• Payments for debts that are in your spouse’s name only

• Alimony or child support that your spouse pays to someone else (not you)

• Your spouse’s individual medical, education, clothing, grooming, and entertainment expenses

Your eligibility for Chapter 7 relief could depend on the amounts listed in the marital deduction section, so the Chapter 7 trustee and the U.S. Trustee may examine this section carefully. Be prepared to provide documentation to support any expenses you include in this section.

Chapter 13 Statement of Current Monthly Income and Disposable Income Calculation

Like its Chapter 7 equivalent, your Chapter 13 Statement of Current Monthly Income includes all the income received in the six months before filing bankruptcy, excluding Social Security income, Veterans Administration benefits, and other federal disability and death benefits. 

If you’re married, you must include your spouse’s income on this form, regardless of whether your spouse is filing bankruptcy, and even if you’re separated. But don’t include any payments from one of you to the other (such as child support) as income.

If your spouse isn’t filing a joint bankruptcy with you, regardless of whether you live together, you should complete the marital adjustment section. This is Item 13 on the form. The Chapter 13 marital deduction is just like the Chapter 7 marital deduction described in the previous section. The only difference is that in Chapter 13, the marital adjustment is applied in the first part of the form. In Chapter 7, it’s only applied in the second part of the form.

Calculation of Disposable Income

If your adjusted household income on this form is higher than the applicable median income, then you must complete the second part of the form, the Calculation of Disposable Income. Because you already completed the marital deduction in the first part of the form, you don’t need to include your spouse’s expenses on this form unless you’re filing a joint bankruptcy. If you’re filing a joint bankruptcy, you must include both of your expenses to complete this form.

Let’s Summarize…

If you’re filing bankruptcy jointly with your spouse, you must always include their income and expense information on all of your joint bankruptcy forms, even if you’re separated. If you and your spouse live together, but your spouse isn’t filing bankruptcy with you, you must include their income and expenses on Schedules I and J and your Statement of Current Monthly Income. 

If you’re separated and your spouse isn’t filing bankruptcy with you, you don’t need to include their income or expenses in Chapter 7 bankruptcy. In Chapter 13, though, you must include their income and expenses on your Statement of Current Monthly Income.