Regarding means test and income being too high

My wife and I are over extended and we are separating. I dont want to include her in BK because I ran up most of the debt. I want to assume the debt but we make too much for means test under chapter 7 as married. Do we have to be legally separated before the courts discount her salary for the means test. Even if she is not living with me. In other words, I would “pass” the means test as we are separated but I do not want to appear I am being fraudulent as there are strict penalties to this. I hope this make sense.Thanks

Asked on June 29, 2009 under Bankruptcy Law, Minnesota


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The rule is:  If you are not married or legally separated and your spouse has their own household, then you will provide only your income information.

If this is a genuine separation, then you have nothing to worry about;  however, if this is just a trick to get around the means test, as you yourself stated there are strict penalties involved for fraud.

One thing is for sure, you need to separate before you file and this includes your spouse having her own place to live.  You may need to offer proof of this, so have it available (ie separation papers, lease for her new residence, utility bills in her name, etc.)  Additionally, if you have any joint accounts your wife will still be liable for their repayment even if you are disharged from those obligations pursuant to your bankruptcy.

You may want to consult with an attorney about all of this.  Best of luck.

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