Yes, a bankruptcy filing can be made by one spouse without the other. Doing so means the non-filing spouse’s assets do not get examined by the trustee or court. It also means the non-filing spouse does not get the full protection of the automatic stay or the bankruptcy discharge.
A key question in determining whether filing alone is a good idea is whether a couple has a lot of joint debts together. If both spouses are jointly liable, a bankruptcy filing by one spouse does not relieve the other of their obligation to pay. A better option in this scenario may be a Chapter 13 filing, which can protect a non filing co-debtor through the payment plan, when it is set up properly.
Another question in determining how a bankruptcy filing would affect a non-filing spouse is how the couple’s assets are titled. In North Carolina, real estate bought by a married couple is generally owned as Tenants By The Entirety. Owning property in this manner generally protects the property from the creditors of either spouse (but not joint debts of both spouses).
Obviously, the rules can get complicated. It is smart to at least learn what your options are by contacting an experienced bankruptcy attorney. If you are in Western North Carolina, I would be happy to help.
