One of the trickier issues in filing an individual bankruptcy is how to handle the situation in which the debtor is married, but his or her petition is individual as opposed to joint, i.e. the spouse does not join in the bankruptcy filing. Of particular importance in this scenario is how to properly account for the debtor’s income and expenses on the B22A (‘Means Test’) calculation form. In general, there are 3 possible scenarios when the prospective filer is married:
‘Married, filing jointly’: This is the most common, and conceptually the easiest to handle. As both spouses are participating in the bankruptcy, they are thought of as one economic unit, and so will have both incomes included on the form B22A (‘Means Test’) schedule. Likewise their combined expenses should be reflected on the Schedule J (statement of) Current Expenditures (i.e. the detailed list of monthly living expenses such as food, clothing, shelter, utilities, taxes, transportation, medicine, etc.).
‘Married, not filing jointly, without declaration of separate households’: This situation is a little less common, and hence a little trickier. The debtor is filing without the participation of his or her spouse, who nevertheless does reside with the debtor. Because of this fact, the non-filing spouse’s gross income must be included with that of the debtor’s for purposes of the means test calculation (Likewise, the non-filing spouse’s expenses must be listed on the debtor’s Schedule J, thereby enabling a fairer evaluation of the financial position of the debtor’s household). This means that the debtor may run afoul of the means test even if his or her income is far below the applicable means test income limit if the non-filing spouse’s income, when added to that of the debtor’s, results in a total in excess of the applicable limit. Equally frustrating for a would-be debtor is when his or her income might be hopelessly insufficient to cover the debts in his or her name but, when the non-filing spouse’s income is factored in, the combined income is adequate to cover the combined household expenses. This situation will trigger a 707(b) trustee objection just as surely as would a combined gross income in excess of the applicable means test threshold figure.
‘Married, not filing jointly, with declaration of separate households’: By checking this box, the debtor is literally declaring, under penalty of perjury, that “My spouse and I are legally separated under applicable non-bankruptcy law or my spouse and I are living apart other than for the purpose of evading the requirements of § 707(b)(2)(A) of the Bankruptcy Code.” This means that the debtor should be prepared to testify under oath, and to also document the fact if requested to, that the non-filing spouse’s income is truly not available to contribute toward the debtor’s expenses, and that the debtor is not merely pretending to be separated so as to exclude the spouse’s income from the means test calculation. The debtor’s petition should include neither the non-filing spouse’s income (Spousal, child, or other support payments, if received by the debtor from the non-filing spouse, are listed by debtor as a separate income item) nor expenses, which by virtue of the debtor’s declaration are presumed to be applicable to an entirely separate household.
Of course, be sure to seek the advice of an experienced bankruptcy attorney before you decide upon a course of action on this or any other bankruptcy issue.