If you are married and considering bankruptcy, you'll have to decide whether to file separately (that is, only one spouse files for bankruptcy and the other is not part of the case) or jointly (both spouses file together). This decision is important: It may affect how much of your debt is discharged and how much of your property you get to keep (in Chapter 7 bankruptcy). Which option is better depends on your situation and your state law.
If you file jointly for bankruptcy, all property of both spouses is part of the bankruptcy estate, and all debts of both spouses are included in the filing. If both of you are facing debt trouble, either as a couple or separately, and considering bankruptcy, filing jointly allows you to put all of your information on one set of forms, pay only one filing fee, and pay only one lawyer (if you decide to hire one).
Filing jointly might be the best option in certain situations, including these:
If you file for bankruptcy separately, all of your separate property and your share of the marital property is part of the bankruptcy estate. (In community property states, all community property is part of the bankruptcy estate, even if only one spouse files. However, the non-filing spouse's separate property isn't part of the estate.) So it might make sense to file separately if the other spouse has significant separate property to protect.
In some situations, you may have to file separately, regardless of your wishes. For example, if one spouse received a discharge in a Chapter 7 case within the past eight years or a Chapter 13 case within the past six years, that spouse won't be allowed to file another Chapter 7 bankruptcy case. If you and your spouse have separated and your spouse won't cooperate, you may also have to file separately, even if a joint filing would be the better option.
If you are both willing and able to file for bankruptcy, a separate filing might make sense if:
If you have any questions about whether to file jointly or separately, you should talk to an experienced bankruptcy lawyer. As you can see, this decision has important consequences, including how much of your debt will be erased and how much of your property you will get to keep. It might even determine whether you keep or lose your home. With so much at stake, it makes sense to consult with an attorney for help in making this choice, even if you decide to handle the rest of the bankruptcy case on your own.