There are benefits to filing for bankruptcy without your spouse as well as with your spouse. For example, if you owe all of the money and your spouse does not, it’s a waste for your spouse to file with you. Remember, bankruptcy is debt relief - if your spouse has no debt, then the relief is useless.

But that’s the easy part. There are times when your spouse’s name is on a debt and you still want to file alone.

When? Well, when you’re both obligated on a mortgage that is in foreclosure.

In this situation, you probably want to save the house. If so, you want to file alone. The reason is that you will file a Chapter 13, which allows you to repay your arrears over a period of up to five years. But Chapter 13 includes something called the “co-debtor stay” (contained in 11 USC 1301). That means when you file for Chapter 13, anyone else who is obligated on the debt is also protected from further collection action.

So you file for Chapter 13 without your spouse. Things don’t go as well as planned, and the case is dismissed. If you file again within one year then there may be limitations on the automatic stay; even if you do get it extended past the 30 days provided for in the bankruptcy laws for second filings, you run the risk that the judge refuses to do so.

What do you do? Have your spouse file the second case. No problems with a second filing, no potential limitations on the automatic stay, and the case goes forward properly.

This doesn’t work as well in a Chapter 7 because the goal of Chapter 13 is to cure arrears, not to discharge an obligation. In the event that you are looking at Chapter 7 to discharge joint obligations, filing together is a better idea because by filing one case you are consolidating all debts and doing so under a single filing fee. It’s less expensive, easier, and faster.