If you are already in bankruptcy court seeking protection from your creditors and are recently married, you may want to add your spouse to your case so you can both wipe out your debts. Unfortunately, unless you make your request to add your spouse shortly after your initial petition, the court will not likely allow your spouse to be joined to your case. Despite this procedural difficulty, there are other ways to achieve the same result: by either refiling to add your spouse to your case or consolidating your spouse's own case with yours.
Joinder Not Permitted
The legal process for adding another party to a lawsuit after the case is filed is called joinder. For most types of civil court actions, joinder, if done at a reasonable time during the case, will be granted if it does not harm the other party. However, due to peculiarities in the Bankruptcy Code, joining your new spouse to your already filed bankruptcy case is not permitted. The reason for this is a technicality in the law. When you file your bankruptcy petition, you must choose which section of the statute you qualify for. Since individual and joint petitions fall under separate sections of the code, you may not turn an individual petition into a joint petition because it would change the statute governing the case.
The underlying policy reason for prohibiting joinder is that it harms the interests of the creditors. Courts have concluded that later including your new spouse, and all her debts, into an existing bankruptcy would cause undue confusion. Since you and your spouse would both ultimately receive a discharge of debts, this confusion would likely only harm your creditors. Some courts may allow you to add your new spouse to your bankruptcy case if you amend your petition immediately after filing and before the court notifies your creditors of the case. Since the clerk of the court mails notices of your filing soon after you file your petition, you will have only a few days after filing to take advantage of this limited opportunity to amend.
Withdrawal and Refiling
If the court does not allow joinder of your spouse and the meeting of your creditors has not yet occurred, you may voluntarily dismiss your bankruptcy case and refile it as a joint petition. This procedure will give you less protection in bankruptcy if you do not wait at least 180 days to refile your case. Bankruptcy rules limit automatic stay protections that you receive from your creditors to only 30 days if you are refiling and have had a dismissed bankruptcy in the last six months. Since the automatic stay prevents your creditors from taking action against you -- such as attempting to collect debts, charging interest and fees, foreclosing or repossessing property and suing you -- this limitation on the stay may make refiling bankruptcy undesirable.
Consolidation and Joint Administration
If you cannot join your spouse to your bankruptcy, the most practical way to achieve a similar result is for your spouse to file her own bankruptcy case and then request the court to consolidate the two cases for joint administration. If the court grants your consolidation request, the case will proceed in substantially the same manner as if your spouse was added through joinder. The main differences are that all filings and forms will have to be submitted in each spouse's name and the filing fee would have to be paid twice.