Short answer: A spouse does not have to file bankruptcy with you but it will often, depending on their debts, make sense for them to do so.

Typically, your spouse will not have to file bankruptcy with you. Whether filing for Chapter 7 bankruptcy or Chapter 13 bankruptcy, a person residing in the state of North Carolina for at least 91 days may file on their own or with their spouse jointly.  For our firm, the attorney’s fee and the court filing fee is the same to file as a couple as it is to file on your own.

Once you have your consultation appointment with a bankruptcy attorney, you will have a better idea if it is best to file on your own or jointly with your spouse.  This is usually determined by the amount of debt in each of your names, whose name the title and mortgage of a home may be in, amongst a number of other factors your attorney will review with you.

The most common reason a spouse would file bankruptcy with you is if they also had a fair amount of debt in their name. If you and your spouse have joint debt and you file the bankruptcy and they do not, your spouse will still be responsible for the full amount of that debt. Not just half of the debt. Typically, if a spouse has less than a few thousand dollars (generally less than $5,000) I would probably not encourage them to file bankruptcy. However, the spouse may choose to file the bankruptcy even if they have less debt than that. It will really depend upon the personal preference of each debtor.

If it is decided that you should file individually, you would include all of your secured and unsecured debt for yourself and your spouse’s medical debt.  In the state of North Carolina, you could be liable for your spouse’s medical bills through an area of the law called the “Necessities Doctrine”. This means a creditor that your spouse owes for medical treatment may still come after you to collect that money.

If you file individually, both the husband and wife’s income are still factored into the Means Test which determines whether you are eligible to file for a Chapter 7 bankruptcy or a Chapter 13 bankruptcy.  The Means Test is based upon total gross household income for the six months prior to filing your bankruptcy petition.