The Short Answer
No — you and your spouse do not have to file bankruptcy together in North Carolina. Either of you can file individually, and whether it makes sense to file jointly depends primarily on how much debt is in each spouse's name and whether you share joint debts. If you file alone and you have joint debts, your spouse remains fully responsible for those — not just their half. A consultation with a bankruptcy attorney will clarify which approach fits your situation.
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.
Key Takeaways
- In North Carolina, you can file Chapter 7 or Chapter 13 bankruptcy individually without your spouse, as long as you've lived in the state for at least 91 days.
- If you have joint debts and only one spouse files, the non-filing spouse stays on the hook for the full balance of those shared debts.
- Filing jointly at Duncan Law costs the same in attorney's fees and court filing fees as filing individually, so there's no financial penalty for bringing your spouse into the case.
- Even if your spouse doesn't file, both spouses' incomes are still counted in the Means Test — the six-month household income calculation that determines Chapter 7 or Chapter 13 eligibility.
- North Carolina's Necessities Doctrine means you can be held liable for your spouse's medical bills even if those bills are solely in their name, which is why individual filers in NC typically include a spouse's medical debt.
- If your spouse has only a few thousand dollars in debt — generally under $5,000 — filing jointly may not be necessary, though it remains their choice to make.
Attorney Insight
The Necessities Doctrine catches a lot of individual filers off guard. Spouses will come in planning to file alone, not realizing that a creditor for medical treatment their spouse received can still come after them personally — which is exactly why we include a spouse's medical debt in an individual filing. The other pattern I see constantly is couples assuming that because only one spouse's name is on the bankruptcy, the other is shielded from joint credit card or loan balances. That's not how it works — the co-debtor on a joint account owes every dollar of it the moment the filing spouse's obligation is discharged.
