There are three ways that you can file bankruptcy while married: Married, filing jointly, or Married, not filing jointly, without declaration of separate households, or Married, not filing jointly, with declaration of separate households.
Of course, married, filing jointly is the easiest of the three declarations. Since both spouses participate in the bankruptcy, they are one economic unit. Both incomes are included in the form B22A (Means Test). Their combined expenditures are shown on the statement of current expenditures.
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Under married, not filing jointly, without declaration of separate households, the debtor is filing independently of his or her spouse who is residing with them. Because the non-filing spouse lives with the debtor, his or her income must be included in the means testing as well as their expenses being reported on the statement of current expenditures. Because of this, the filing spouse could fail to meet the means testing, even if his or her independent income falls short of being able to pay their incurred debt. The combination of the incomes might easily be high enough to trigger a trustee objection, which would result in denial of the bankruptcy petition.
Married, not filing jointly, with declaration of separate households means that the debtor is declaring that he or she and his or her spouse no longer reside together. As a result of this separation, the spouse income is no longer available to settle household debts. The debtor must be willing to swear under oath that this is true and provide documentation to prove that he or she is not simply attempting the court to negate his or her spouse's income as part of the means calculation.
Such complexities in a bankruptcy petition must certainly be met by hiring an experienced bankruptcy attorney to represent your interests in court. Perhaps a married, filing jointly petition could be handled on-line without the involvement of legal representation. Certainly, however, debtors filing a married, not filing jointly, without declaration of separate households petition or a married, not filing jointly, with declaration of separate households petition, will need a good lawyer.
You should also be certain to consult a tax expert before undertaking a bankruptcy of any type, in order to determine how the outcome of your bankruptcy will impact your tax situation and the filing of your next income tax return. It is important that the information you present in bankruptcy court coincide with the information that you report to the IRS before and after your bankruptcy determination.
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