Before we answer this question, you first need to find out one thing. Do you live in a community property state? If you live in Kentucky, you live in a separate property state, meaning all of your assets are classified as either separate or marital. Separate property belongs only to you because you owned it before the marriage, received it as a gift, or as an inheritance. Marital property is anything that comes into the marriage that is not separate property. As of 2020, Kentucky now has an optional community property system, which allows residents and non-residents to establish community property trusts.
Because Kentucky’s property laws have changed so recently, you might not be familiar with what your rights are in terms of filing bankruptcy while married. At O’Bryan Law Offices, we exclusively handle bankruptcy cases, meaning our experience and reputation stand on solid ground. If you’re in a tough situation and considering bankruptcy, our compassionate Kentucky bankruptcy attorneys are here for you. Call (502) 400-4020 today for a free consultation.
Can One Spouse File Bankruptcy?
The short answer is yes. Kentucky’s status as a non-community property state allows for slightly more favorable treatment when you file for bankruptcy on your own without your spouse. If you choose to file bankruptcy separately from your spouse, your estate will only include the property titled in your name. We consider many factors while determining if filing separately or jointly is the best option for you.
You and your spouse may have separate debts unless you share a joint account. No community debt exists in the marriage unless you and your spouse decide to opt into a community property system, as introduced to Kentucky in 2020.
When Should I File Without My Spouse?
Sometimes, it’s a much better idea to file bankruptcy without your spouse. For example, the only debts that exist in the marriage might be in your name. If your spouse does not share your debts, it makes more sense to file separately. Maybe you signed a prenuptial agreement. In that case, you and your spouse keep your finances separate, and you file for bankruptcy separately. If your spouse expects to receive an inheritance soon, you’ll want to file separately. Maybe your spouse also filed bankruptcy in the past, but they’re not eligible for a discharge. Finally, you might want to save your spouse’s ability to file for bankruptcy in the future if you feel it is necessary. Any of the above reasons constitute a reason for filing bankruptcy without your spouse.
When Shouldn’t I File Without My Spouse?
We know it isn’t always obvious to decide to file with or without your spouse. It ultimately depends on your specific circumstances, as well as what state you’re in while filing. Below, we list two common reasons for filing bankruptcy without your spouse that, unfortunately, do not work out in the end.
- You and your spouse have joint debts, but you file without them so as not to hurt their credit score. Unless your spouse is able to stay current on their joint debt payments, their credit score will still be affected by your bankruptcy. Additionally, your bankruptcy discharge will not protect them from collectors of debt.
- You live in a community state, but you don’t want to include the property of your spouse in the bankruptcy estate. This situation only applies in Kentucky if you opt into a community property system, as Kentucky is a separate property state by default. In community property states, all of your marital assets are part of the bankruptcy estate whether you file with or without your spouse.
Can I File Chapter 7 Without My Spouse?
If you decide to file for Chapter 7 bankruptcy in Kentucky without your spouse, determine whether or not your debts are separate. If they are separate, your spouse’s credit will not be affected by your bankruptcy filing. However, if you and your spouse share debts, your bankruptcy will likely show up on their credit report. As long as your spouse stays up to date on their debt payments, their credit score will not drop. When you and your spouse share an account, and only you file for bankruptcy, your obligation to pay your debts is erased. Your spouse’s obligation, however, remains the same.
The good news is that you and your spouse can still apply for joint credit accounts or loans in the future. The bankruptcy filing will affect this ability for a while, but not forever. Credit scores tend to increase if you file for bankruptcy as opposed to staying in debt. So, as you gradually rebuild your credit score, the likelihood of getting a loan with good terms increases.
If I File Bankruptcy Alone, How Does That Affect the Automatic Stay?
Automatic stays apply as soon as you file your bankruptcy case. They protect you from creditors and stop legal actions, including foreclosure, repossession, and even debt collection lawsuits. If you file for a Chapter 7 bankruptcy without your spouse, the automatic stay only applies to you. This means that they are not protected. However, if you file for a Chapter 13 bankruptcy, you receive a co-debtor stay. This means that anyone listed on your debts is also protected by the stay. If you enter into a community property system in Kentucky, the automatic stay will extend to the marital property you and your spouse share. Generally speaking, your spouse’s wages and payments are not subject to garnishment in Kentucky.
Can I File Bankruptcy Without My Spouse Knowing?
It is technically possible to file your own bankruptcy case without your spouse knowing. If your spouse is not a co-debtor, you do not need to list them in the case, and they will not be notified by the court. However, if you opt into a community property system or live in a community property state, you must list your spouse’s income and expenses in the means test form.
Bankruptcy is an extremely complicated process, especially if you are married. While it is possible to file without your spouse knowing, we highly recommend speaking with an experienced Kentucky bankruptcy attorney before you make any decisions. Filings are not always clear-cut, and the stress of filing for bankruptcy on your own could affect your marriage. In the worst case scenario, it may even lead to divorce. Call O’Bryan Law Offices today at (502) 400-4020 to discuss your options.
Does Bankruptcy Affect Your Spouse?
Maybe. This depends heavily on whether you have joint debts or property with your spouse, your state’s property laws, and which kind of bankruptcy you file for. Filing for bankruptcy without your spouse typically does not affect their credit unless you have joint debts. In that case, your bankruptcy filing may show up on your spouse’s credit report. Also, creditors can still go after your spouse to collect debts, as they are not protected under your bankruptcy filing.
In separate property, or common law states, the only assets that are in your bankruptcy estate are your individual assets, as well as any property you and your spouse own jointly. Your spouse’s personal property is not part of your bankruptcy estate, and thus not at risk. In community property states, almost all assets acquired during a marriage are considered joint property. All joint assets are part of your bankruptcy estate, and may be used to pay off your debts. This situation greatly impacts your spouse.
Should I Hire a Bankruptcy Attorney in Kentucky?
When you file for bankruptcy, you don’t have to suffer alone. At O’Bryan Law Offices, we help people get back on their feet. Increasing debt pressure creates stress and anxiety, so don’t wait until it’s too late. We also offer services regarding estate planning, Kentucky debt counseling, and credit restoration. Call our Kentucky bankruptcy law firm today at (502) 400-4020 or visit our website to learn more.