Under Bankruptcy law, a married couple may file 13 bankruptcy either individually or jointly as a married couple. See Bankruptcy law 11 USC 302. However, because a couple can file a joint bankruptcy it does not mean they should jointly file bankruptcy when married. Deciding if and how to file for bankruptcy should not be taken lightly, the decision can have long-lasting effects on your finances and future. If you are overwhelmed debt and considering bankruptcy speak with a bankruptcy attorney in Tampa before taking any action. A bankruptcy lawyer can help you choose a course of action that is best for your specific situation.
Bankruptcy When Married: Tenancy by the Entireties
Under Florida family law, when a married couple jointly purchases a home or other personal property it is presumed that the property will be held as a tenancy by the entireties. In a tenancy by the entireties, the property is owned by the marital union, rather than by the individual spouses. This is an important fact to consider if you are contemplating filing bankruptcy when married.
Each party to the marriage has an undivided one-half interest in the marital union, which in turn owns the property Thus, a creditor of one spouse may not place a lien on property held as a tenancy by the entirety without both spouses agreeing to do so. Therefore, if only one spouse agrees to give property held as tenancy by the entireties to a creditor as collateral for a loan, the creditor will not be able to force a liquidation of the property in a case for bankruptcy when married. Instead, the creditor will only have a lien on that spouse’s one-half interest in the tenancy by the entireties.
Exemptions in Bankruptcy When Married
Exempt property is property that you do not have to forfeit when filing for Chapter 7 bankruptcy. A joint petition for bankruptcy when married may entitle the couple to double the amount of some exemptions. For instance, the Florida exemption for a motor vehicle is only $1,000 in an individual bankruptcy case; however, when filing jointly the exemption doubles to $2,000. Additionally, the personal property exemption of $1,000 increases to $2,000 when the Chapter 7 is filed jointly. See In Re Hawkins. It is important to note, the remaining exemptions will remain the same and not increase by filing a joint petition. Therefore, a couple may be able to claim more exemptions by filing separate, individual petitions for bankruptcy.
The amount of exemptions you are eligible for may greatly impact whether or not to file for bankruptcy when married. Depending on the circumstances of your case, all of your property may be exempt from the bankruptcy. On the other hand, you may be forced to liquidate precious assets if you file for Chapter 7 bankruptcy and your property does not qualify for an exemption. A bankruptcy attorney can advise which property may qualify for an exemption and which property may be subject to liquidation. Therefore, you should speak with a bankruptcy lawyer in Tampa before taking any legal action.
Filing A Joint Bankruptcy When Not Married
Married couples are the only parties allowed to file for bankruptcy jointly. However, if a couple wants to file a joint petition for bankruptcy when married they should do so in the initial petition. Courts have consistently rejected amendments to bankruptcy petitions which seek to add a spouse after the case has been filed. See In Re Clinton. Further, the filing of a joint petition for bankruptcy when married does not automatically entitle the couple to a joint administration or consolidation. Rather, under Bankruptcy Rule 1015, the court has discretion to deny the joint administration or consolidation. However, joint petitions filed by a married couple are almost always administered jointly unless there is an objection.
Tampa Bankruptcy Law Firm
If you are having a difficult time meeting your financial obligations Florida Law Advisers, P.A. may be able to help. Our Tampa bankruptcy attorneys have years of experience helping people just like you solve their financial problems and obtain a fresh start. We combine our experience and skills in the courtroom with a thorough knowledge of the law to help achieve the results our clients need and deserve. Regardless, whether you need help with Chapter 13, Chapter 7, or other forms of debt relief our professional legal team will provide you with competent legal advice you can trust. Call 800 990 7763 to speak with a bankruptcy attorney at our firm during and schedule a free initial consultation.