By Ryan C. Wood
Just because you need to file for bankruptcy does not mean that your spouse will need to file as well or has to file as well. There may be many reasons why only one spouse chooses to file for bankruptcy protection. Maybe your spouse does not have any significant debts to warrant filing for bankruptcy, or your spouse has good credit and does not want to have bankruptcy on his or her credit report. Possibly your spouse does not qualify to receive a bankruptcy discharge due to some circumstance. Bottom line is your spouse is not required to file for bankruptcy no matter what the reason is. However, just because your spouse is not filing for bankruptcy with you does not mean your spouse does not have any obligations in your bankruptcy case to cooperate and properly disclose their income, expenses and assets (both community and separate property assets.) Only community assets are part of the bankruptcy estate created upon the filing of the bankruptcy petition though.
You Are Married And That Creates One Community
Many spouses have the mistaken belief that since they are not filing for bankruptcy they should not be involved in the bankruptcy case in any aspect, but that is not true. As much as you may want to ignore you are legally married you cannot ignore it in a legal proceeding like filing for bankruptcy protection that you are in fact married. Like it or not California law once you are married forces some presumptions on you as a spouse. California community property law assumes both you and your spouse have command and control over the community income, expenses and assets. Both spouses are liable for community debts; that is debts incurred during marriage whether regardless of which spouse entered into or signed the contract. You are married. There is only one community. I know, I know that you have separate bank accounts and do not know how much your spouses earns each but you are married. It does not matter how you conduct your business in the real world because you are married. It is no ones business and you are free to you how you so choose. You are now seeking to discharge your debts by filing for bankruptcy protection and we have certain obligations that must be done correctly.
Your spouse will still need to provide pay stubs for the 6-month period right before your bankruptcy case is filed and cooperate with your bankruptcy attorney. Your spouse’s pay stubs and yours are needed for purposes of calculating your average household income for the 6-month period on the Means Test or Chapter 13 Statement of Monthly Disposable Income. This means if you file your case in December, you will need to provide you and your spouse’s pay stubs from June to November to complete the 6-month period. Something that I run into time and time again is You need to reassure your spouse that just because he or she is providing pay stubs in your bankruptcy case does not mean that he or she is filing for bankruptcy with you. Your spouse’s credit will not be affected by your bankruptcy filing by providing the necessary pay stubs.
Another requirement is that your bankruptcy lawyer must provide 60 days of pay stubs to the trustee prior to the meeting of creditors. This consists of the 60 day period prior to your bankruptcy filing. Some jurisdictions require the 60 day pay stubs to be filed with the court and some jurisdictions only require the 60 day pay stubs to be provided to your trustee directly. Whether or not your spouse’s pay stubs need to be provided to the trustee will depend on the local rules of your jurisdiction. When in doubt you can always contact your trustee and ask whether your spouse’s pay stubs are required. If you have a bankruptcy attorney, your attorney will be able to answer your questions and your attorney will be able to provide the required documents to the trustee (assuming you provided all the requested documentation to your attorney, of course).
You are married. You are married. When I ask you something and you say I do not know or why does that matter my answer will be your married.