You may file without your spouse. California is a community property state. As a result whether one spouse files bankruptcy or both spouses file, all assets of the marital community must be reflected in the bankruptcy papers as assets, regardless of which spouse owns the asset. All income being generated by the marital community must be reflected in the bankruptcy papers as income, regardless of which spouse earns it..
Whether assets and income are community property or one spouse’s separate property depends on such factors as whether the asset or earnings were acquired prior to marriage or during marriage, whether there was a prenuptial or postnuptial agreement, and whether the asset or income was inherited.
When one spouse files without the other, the resulting bankruptcy discharge discharges both the filing spouse and the marital community of their obligations. That is called a Community Property Discharge. A community creditor cannot reach the post bankruptcy wages of either spouse, as those wages are protected by the one spouse’s discharge. The protection of the community property discharge lasts only as long as the marriage does. Death or divorce terminates the marital community. Either event will again expose the non filing spouse to collection action on their debts discharged in the bankruptcy of the former spouse.
Also, even while the Community Property discharge is in effect, creditors who also have the non filing spouse on the hook may still sue the non filing spouse and obtain a judgment. The creditor would only be able to execute the judgment against the non filing spouse’s sole and separate property, if any, but creditors have a right to a judgment against the non filing spouse.
I provide a free initial consultation. At this consultation I will provide you with all of your options, answer all of your questions, and help you to decide what the best option available for you is. Call the Law Offices of Brent D. George in Thousand Oaks, California for a free consultation or for any other advice about bankruptcy or debt at (805) 494-8400.