Can we legally file individually for bankruptcy if we are separated? 25 Answers as of June 19, 2013

My husband and I are separated and living in separate houses. We are each renting our home because of a foreclosure and he has both children because I cannot financially afford it. We are still legally married but would like to file separately. We do not pass the means test to file jointly but do pass if we file separately. Do we able to do this or do we legally have to separate? We are working on our marriage which is why are not legally separated but have agreed that we will legally separate if this is the only way to pass the means test so we can file each individually. I have found no information on this kind of situation online.

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Law Office of Susan G. Taylor
Law Office of Susan G. Taylor | Susan G. Taylor
Yes, you can file separately. On the means test, check the box that says "married, with a declaration of separate households."
Answer Applies to: Texas
Replied: 2/21/2012
Philip R. Boardman, Attorney at Law
Philip R. Boardman, Attorney at Law | Phil Boardman
Yes, you may file jointly so long as you are married regardless of whether you are separated or not.
Answer Applies to: Virginia
Replied: 2/21/2012
Marc S. Stern
Marc S. Stern | Marc S. Stern
You can certainly file separately but not passing the means test if you file jointly makes no sense. Your lawyer is missing the separate household issue.
Answer Applies to: Washington
Replied: 2/20/2012
The Law Offices of Deborah Ann Stencel | Deborah A. Stencel
You may file separately even though you are legally married and not legally separated. If you maintain separate households, filing separately makes a lot of sense to me. You will have to disclose any expected changes in the next year, so if you definitely intend to get back together soon that will need to be disclosed particularly if your joint income in one household would push you into a Chapter 13.
Answer Applies to: Wisconsin
Replied: 2/20/2012
Steven Harrell, Attorney at Law | Waymon Steven Harrell
You can file individual petitions, and you must indicate on your means test forms that you are married, both with declaration of separate households.
Answer Applies to: Georgia
Replied: 2/20/2012
    Ross Smith, Attorney at Law
    Ross Smith, Attorney at Law | Charles Ross Smith III
    You can not separate solely for purpose of passing the means test. However, you are already living separate and apart for your own personal reasons. The fact that you are working on the marriage is commendable, but does not change the fact that you are separate and apart. So you are each free to file separately, if you wish. You do not have to file for a formal divorce or sign a separation agreement to qualify. Separate addresses will do just fine.
    Answer Applies to: Ohio
    Replied: 2/20/2012
    The Law Office of Darren Aronow, PC
    The Law Office of Darren Aronow, PC | Darren Aronow
    If you are living and supporting two separate households then you can each file separately, but you should use an attorney to file because the means test can be tricky.
    Answer Applies to: New York
    Replied: 2/20/2012
    The Barrister Firm
    The Barrister Firm | Christopher Benjamin
    Since FL does not have a "legal" separation status or procedure, you only need to indicate in your bankruptcy filing that you are living in separate households.
    Answer Applies to: Florida
    Replied: 2/20/2012
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You are about to commit financial and legal suicide. Do not ruin your life and file pro se. Exemptions and keeping (or losing) vehicles is something that you will mess up without legal help. Save yourself from disaster. Abandon your pro se plans, and get a lawyer. It will save you money. A lawyer can likely come up with a way for you to file.
    Answer Applies to: Georgia
    Replied: 2/20/2012
    J.M. Cook, P.A. | J.M. Cook
    No. If you are separating in order to pass the means test, that is bankruptcy fraud, no matter what an atty tells you. There are a lot of options here so make sure you consult with a quality atty.
    Answer Applies to: North Carolina
    Replied: 2/20/2012
    Janet A. Lawson Bankruptcy Attorney
    Janet A. Lawson Bankruptcy Attorney | Janet Lawson
    If you in fact separated you can file individually. You do not need a legal separation, just physical separation.
    Answer Applies to: California
    Replied: 2/20/2012
    Law Offices of Joseph A. Mannis
    Law Offices of Joseph A. Mannis | Todd Mannis
    If you're living in separate houses, the fact that you did not file an actual legal separation will not matter. As long as you didn't separate for purposes of beating the means test, which it does not appear you did. As long as that is the case, you can file singly. By the way, in these situations, usually what happens is that one spouse qualifies, but the other may not.
    Answer Applies to: California
    Replied: 2/17/2012
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    If you are separated, yes, you can file individual bankruptcies. You are not required to file a joint case.
    Answer Applies to: California
    Replied: 2/17/2012
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    A formal legal separation is clear evidence of separation, but not required. If you in fact are maintaining separate households with different addresses and other things like utilities only in your name at the two different addresses, and if the separation is not done for the purpose of trying to qualify under the mans test, then you can check to box on the first page of the means testing form that you are married, but maintain separate households and do not have to include the income of the other spouse for means testing purposes.
    Answer Applies to: California
    Replied: 2/17/2012
    Bankruptcy Law office of Bill Rubendall
    Bankruptcy Law office of Bill Rubendall | William M. Rubendall
    Each spouse can file their own petition. If legally married all assets, debts income and expense of both must be listed. If legally separated you do not need to list the separate assets, debts, income and expenses.
    Answer Applies to: California
    Replied: 2/17/2012
    Carballo Law Offices
    Carballo Law Offices | Tony E. Carballo
    You can file jointly even if separated. You can file separate is truly separated. Separating for the purpose of passing the means test is not OK. There is also the possibility of filing jointly with having separate households and passing the means test (maybe). These are complicated issues based on specific facts in your case so it is something that an attorney needs to decipher after a consultation to get all the facts.
    Answer Applies to: California
    Replied: 2/17/2012
    Judith A. Runyon, Esq. Attorney at Law
    Judith A. Runyon, Esq. Attorney at Law | Judith A. Runyon
    You are misinterpreting the Means test.
    Answer Applies to: California
    Replied: 6/19/2013
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