Do both spouses have to file for bankruptcy?

No, there is no requirement in the Bankruptcy Code that a married couple must file bankruptcy jointly. In fact, in many cases our office will not recommend a joint filing. For example, if a couple is newly married and one spouse has brought significant debt to the marriage, then it may be best that only one spouse file.

However, there are circumstances where a creditor might be able to sue spouses even if one spouse did not sign a contract for the debt. You should seek advice from an attorney regarding the applicability of the “Doctrine of Necessaries” to your fact pattern.

The Indiana Supreme Court has held that “each spouse is primarily liable for his or her independent debts.” Typically, a creditor may look to a non-contracting spouse for satisfaction of the debts of the other only if the non-contracting spouse has otherwise agreed to contractual liability or can be said to have authorized the debt by implication under the laws of agency.

When, however, there is a shortfall between a dependent spouse’s necessary expenses and separate funds, the law will impose limited secondary liability upon the financially superior spouse by means of the doctrine of necessaries.” See In Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 8 (Ind. 1993).

 

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*Disclosure required by 11 U.S.C. § 528(a)(3): We, the law office of Tom Scott & Associates, P.C., are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.