When a Joint Petition is Required?

One can file a single petition even if married. However, the non-filing spouse income is required in the income schedule. The non-filing spouse income is not required if the filing spouse is living separate and apart for more than one year. The only time more than one debtor may join in a single petition under any Bankruptcy Code chapter is when a husband and wife files a joint petition. However, a joint petition does not create a joint estate; the husband and wife stay two separate debtors. There is no necessity that both husband and wife must join the petition. They may file separate petitions if they choose, even if they file simultaneously. However, it is preferable to join together because only one court fee is required. Moreover, spouses often have joint liability on household debts. The advantage is that if only spouse files bankruptcy, the other spouse who does not file, is protected by the automatic stay. A spouse may also not be joined as a co debtor after the petition has been filed. On the other hand, it is beneficial to file separately because a mean test may be high and make them ineligible to file. If both spouses join the petition, all of the current monthly income is included in the calculations. Joint petitioners must be husband and wife at the time of the petition. It is a good idea when divorce and bankruptcy are going hand in hand, it may be wise to have the bankruptcy precede the divorce to enable the debtors to file a join petition.

The filing of a joint petition acts automatically as the order for relief. The debtors will have a single trustee and their estates will be administered jointly.


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