- February 27, 2025
- Kelvin Birk
- Bankruptcy
Married individuals are allowed to file bankruptcy without their spouse in Missouri, so it can be possible to file without your spouse knowing about it. However, this does not mean it is a good idea to do so, or even to file individually with your spouse’s consent. Bankruptcy laws are complicated; there are consequences to filing incorrectly; and there are many factors you should consider in order to determine whether filing bankruptcy with or without your spouse makes the most sense. It can help to consult with an experienced Missouri bankruptcy lawyer who can examine your individual situation and help you determine which type of bankruptcy is best for you, whether you should file individually or jointly, and whether it is advisable to file without your spouse knowing.
Considerations When Filing for Bankruptcy
The first thing to consider is whether you would be better off filing jointly or individually. If you think you are better off filing individually, then you can decide whether or not to file without your spouse knowing.
When deciding whether or not to file without your spouse consider:
- Are the debts only in your name, or are they held jointly?
- Do you have a prenuptial agreement and separate finances?
- Do you or your spouse expect any potential future inheritances?
- Have you or your spouse previously filed for bankruptcy?
- Does your spouse need the ability to file for bankruptcy in the future?
- Are you thinking of divorcing in the future?
- What will the effects on your marriage be if your spouse finds out that you hid filing for bankruptcy?
Filing bankruptcy without your spouse may be advantageous in certain situations. This includes situations where you want to protect your spouse’s credit rating since the bankruptcy won’t appear on their credit report. It may also be considered if your spouse expects to get an inheritance, or where debts and finances are separate and you have significant personal debt unrelated to your spouse.
However, even if you file individually, your spouse will be affected and probably will be able to find out that you filed. This is because when filing for Chapter 7 you need to pass a “means test” to determine whether you qualify, and your spouse’s income will be included if you live together. Also, if you and your spouse share some debts jointly and you file individually, the automatic stay that results from Chapter 7 and protects you from creditor collection efforts will extend to your spouse for shared debts (called a “codebtor stay”), but will only protect your individual debts and not your spouse’s. Therefore, your spouse will still be responsible for their individual debts and creditors may still pursue them for repayment.
Understanding the Different Kinds of Bankruptcy
Before deciding whether to file for bankruptcy, you should understand what is involved with the two types of bankruptcy that you can file as an individual or couple. Chapter 7, also known as “fresh start” bankruptcy, is the most common bankruptcy. Chapter 13, also known as “wage earner” or “debt reorganization” bankruptcy, may be the right option if you earn too much to qualify for Chapter 7.
Chapter 7 Bankruptcy
This is a personal liquidation of your assets to pay off some of your debts. Any remaining debt is usually discharged under Chapter 7. Many or all of your assets – such as your house and vehicles – do not have to be liquidated. Many Chapter 7 bankruptcy filings are “no asset” cases, where none of the assets have to be sold to pay your debts, because they are protected by exemptions.
Chapter 7 is usually more advantageous for the filer, though not everyone qualifies. There are certain income requirements using the “bankruptcy means test” for someone to qualify for Chapter 7. One calculation determines whether your income is below the Missouri state median for your household size. This calculation must be made before filing. If you do not qualify for Chapter 7, then you will likely want to pursue Chapter 13.
This is a personal reorganization of debt that spreads repayment out over a three- to five-year period on more favorable terms that allow you to move forward successfully. In a Chapter 13 bankruptcy, you must have an adequate and sustainable income as some of your future earnings will be paid toward your current debts. Some or all of your unsecured debts are typically discharged, but the amount of debt discharged without payment depends on the amount of your current income and debts.
One advantage of Chapter 13 is that you can keep your home, even if it is in foreclosure or you are behind on your payments. You can stop foreclosure proceedings under Chapter 13 and work out a longer mortgage repayment plan than the current mortgage holder would typically allow.
It’s important to remember that if one party files without their spouse, then the spouse’s credit record would typically be spared from any negative impact. However, if you live in the same house with your spouse, even in an individual bankruptcy the spouse’s income will be included when determining your household median income, which could impact whether or not you qualify for Chapter 7. This is because Missouri bankruptcy laws assume that if you’re living in the same house with your spouse, you are sharing expenses and income.
Remember, while you can file without your spouse or your spouse’s knowledge, it’s important to carefully consider all factors and potential consequences before making this decision. It is also important to remember that some debts cannot typically be eliminated through bankruptcy, including taxes, student loans, alimony and child support payments, but in some cases even these debts can be discharged in bankruptcy. It’s important to understand specific state and federal laws before deciding whether to file individually or jointly with your spouse.
Can I File Bankruptcy Without My Spouse Knowing if Getting Divorced?
Sometimes if couples are struggling or planning to divorce, they may be considering filing bankruptcy without their spouse knowing it. We often discourage this path. Joint filing of bankruptcy before divorce, when possible, can eliminate the need to litigate issues of debt during divorce proceedings, thereby saving attorneys’ fees and expediting the divorce. A divorce court can divide joint debt between divorcing spouses, but it cannot change the terms of the debt with creditors. You and your spouse will still be responsible for these debts even after the divorce is final.
Also, couples who file bankruptcy jointly before divorce can exempt double the amount of assets, and this may be a benefit in your specific situation. The best way to determine how to proceed financially when divorce is being considered is to talk to our knowledgeable bankruptcy attorney before making any legal decisions.
Get Help from Our Bankruptcy Attorney
If you have questions about whether and how to file bankruptcy, the skilled and experienced bankruptcy attorneys at Birk Law Firm would be glad to provide answers. We will review your case and explain your options, including the pros and cons of filing with or without your spouse.
Missouri attorney Kelvin Birk is a Certified Public Accountant as well as a bankruptcy lawyer, with more than 30 years of experience in accounting and tax and business consulting. This dual background gives him the essential knowledge to help you navigate the bankruptcy process and make sure it goes as smoothly as possible. Read our client testimonials to see how we have helped others, and know that we are ready to do the same for you.
Call the Birk Law Firm today for a free consultation to discuss your individual situation and get started on the road to a brighter financial future.
FREE CONSULT CALL NOW 573-332-8585
Attorney Kelvin Birk
Kelvin Birk is a lawyer as well as a certified public accountant, with more than 30 years of experience in accounting and tax and business consulting, and more than 20 years of experience in numerous legal matters. This combined expertise allows our law firm to provide a level of service above that of other firms. Whatever your legal situation, your attorney at Birk Law Firm can counsel you as to the tax implications. We have experience in providing myriad legal representation services to residents of southeast Missouri and other areas.. [ Attorney Bio ]
