HOW WILL MY BANKRUPTCY AFFECT MY SPOUSE?
July 14, 2021
According to statistics from the American Bankruptcy Institute, there were 26,723 total bankruptcy filings in Texas in 2020. Unexpected life events can make meeting financial obligations difficult for married couples. Spouses facing financial distress may decide to file for bankruptcy either individually or together. Understanding how filing for bankruptcy affects your spouse is crucial to help you make the right decision.
At Oliva Law, we have the experience and resources to assist and guide individuals, couples, and families through the complexities of bankruptcy proceedings. Our experienced Texas bankruptcy attorneys are available to discuss your financial situation and explore your available options. As your legal counsel, we will educate you about the benefits and drawbacks of filing separately or jointly and help you make informed choices.
At Oliva Law, we're proud to serve clients in McAllen, Corpus Christi, Brownsville, Harlingen, and throughout the Rio Grande Valley, Texas.
Separate Property vs. Community Property
In Texas, a married couple's assets are separated into two distinct categories — separate property and community property.
Separate property includes all assets and property owned or debts and liabilities incurred by either spouse before the marriage. Pursuant to Texas Family Code Section 3.001, a spouse's separate property consists of:
Property owned or claimed by the spouse before marriage
Property acquired by the spouse during marriage by gift, devise, or descent
Recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during the marriage
Community or marital property consists of all assets, property, debts, and liabilities acquired by the couple during the marriage or domestic partnership. According to Texas Family Code Section 3.002, "community property consists of the property, other than separate property, acquired by either spouse during marriage."
Filing for Bankruptcy Individually
In Texas, married couples still have the option of filing for bankruptcy as an individual or simultaneously as separate individuals. Here are some of the pros and cons of filing bankruptcy as an individual in Texas:
Individual bankruptcy wipes out some of the general unsecured debt of the indebted spouse
The separate property of the non-filing spouse isn't affected
Filing simultaneously as separate individuals can protect more assets and property
A good credit rating of the non-filing spouse can be preserved
Filing simultaneously as separate individuals will result in higher court costs and attorney fees
Creditors can come after the assets and wages of the non-filing spouse
You may fail the Chapter 7 "means test" if you and your spouse make a lot of money
You may need to include the non-filing spouse's income if you're married
Filing for Bankruptcy Jointly
In Texas, couples who are legally married can file for bankruptcy together. This is referred to as "joint bankruptcy." Below are some of the pros and cons of filing for joint bankruptcy in Texas:
Filing together helps wipe out the general unsecured debt of you and your spouse
Filing jointly helps save court costs and attorney fees
Since only one bankruptcy petition is required, filing jointly is efficient and more convenient
Filing jointly gives you twice the number of exemptions
You are able to keep more assets and property
The entire bankruptcy process can be streamlined
Only one spouse is eligible to file for bankruptcy if the other spouse has filed recently
The credit rating of both spouses will be negatively affected
Factors to Consider
To determine the ideal filing option, here are some things to consider:
How much separate or community property do you own?
Have you separated or facing a pending divorce?
Have you previously filed for bankruptcy?
Which spouse owes most of the debt?
An experienced bankruptcy attorney can evaluate your circumstances, advise you on the matter, and help you make informed decisions.
Rely On Our Team at
Oliva Law Bankruptcy for Help
Filing for bankruptcy in Texas involves complicated procedures. Whether you intend to file individually or together with your spouse, your community or separate property can make a significant difference in your case. When considering filing for bankruptcy, consulting with an experienced bankruptcy attorney is crucial to review your options and help determine the best course of action.
At Oliva Law, our attorneys are committed to providing knowledgeable and comprehensive guidance to clients in bankruptcy-related matters. As your legal counsel, we will evaluate your financial situation and determine the ideal bankruptcy chapter or filing option that suits your needs. Whether you are trying to file as an individual or together with your partner, we will offer you the detailed legal counsel and advocacy you need to pursue financial relief.
Contact us at Oliva Law to schedule a one-on-one case assessment with experienced bankruptcy attorneys. Our dedicated team can guide you through the bankruptcy proceedings from start to finish. We proudly serve clients in McAllen, Corpus Christi, Brownsville, Harlingen, and throughout the Rio Grande Valley, Texas.