If I am in a Chapter 13 and my husband filed a Chapter 7, can we file our tax returns separately if I have to turn over my refund in the Chapter 13?

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If I am in a Chapter 13 and my husband filed a Chapter 7, can we file our tax returns separately if I have to turn over my refund in the Chapter 13?

Asked on February 10, 2011 under Bankruptcy Law, Kentucky

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

A husband and wife can *always* elect to file separately, not jointly; the fact that you are both in or filing bankruptcy does not alter that. However, how you file also will not affect any obligations to turn over money or assets in a bankruptcy. That is dependent on whether the money or assets is a joint marital asset or not. Since KY is not a community property state, it's not automatically the case that one person's tax refund is 50% the property of the other, but depending on the source of the income and where it goes after its received (e.g. into a joint bank account), it might be. Two bankruptcies is complex; it is recommended that you and your husband consult with a bankrupcy attorney about how best to protect your individual and joint assets under the circumstances.


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