Spouse debt discharge and marital property: what about joint debts and the home when your partner seeks discharge?

The case, in five lines

What is brought

An application for insolvency (concurso) and for discharge of unpaid debts by your spouse and, if you are also insolvent, by both of you at once (joint insolvency, art. 38 TRLC) or consolidation of insolvency cases already opened (art. 41). If only he goes into insolvency, your defence within his case: dissolution and liquidation of the community of acquisitions before the insolvency judge (art. 125) or purchase of the common assets by paying half their value (art. 194).

Before which court

The Sección de lo Mercantil del Tribunal de Instancia (commercial section of the court of first instance) of the provincial capital where the debtor has their centre of main interests (art. 45.1 TRLC and art. 87 LOPJ); in provinces without a commercial section, a judge of the Sección Civil del Tribunal de Instancia (civil section) of the capital. That same judge dissolves and liquidates the debtor's community of acquisitions (art. 52.2 TRLC). Judgments in insolvency side proceedings (incidentes concursales) are appealed to the Audiencia Provincial (provincial appeal court).

Deadline

A debtor must file for insolvency within two months of becoming aware of current insolvency (art. 5 TRLC); if one spouse's case is already open, the other's is consolidated with it later (art. 41). In a no-asset insolvency (concurso sin masa), discharge is sought within ten days after the creditors' fifteen days to request an insolvency administrator expire (arts. 37 ter and 501.1); after liquidation, at the hearing on the closure of the case (art. 501.2); with a payment plan, before liquidation is ordered (art. 495.2). No appeal lies against the order granting final discharge (art. 500.3).

Who can bring it

Each spouse files their own insolvency and seeks their own discharge, with a special power of attorney for our procurador (court representative) (art. 6.2 TRLC), granted free of charge before the letrado de la Administración de Justicia (court clerk) of any court office, without a digital certificate or Cl@ve. A joint insolvency is requested by both spouses (art. 38); consolidation, by either debtor or either insolvency administrator and, failing them, by the creditors (art. 41.2). Dissolution of the community of acquisitions is requested by the debtor's spouse (art. 125.1). A registered unmarried couple may do so on the terms of art. 40.

Financial risk

If only he obtains discharge, the creditors of marital debts that you signed, or that you both signed, can go on claiming them from you (arts. 491 and 492.1), including by garnishing your wages within the statutory limits. If community assets enter the insolvency estate and you do nothing, those common assets, the home included, may be sold in the liquidation. Discharge is granted by the judge after verifying each spouse's good faith: granting it to one does not guarantee it for the other.

Your spouse's discharge does not cancel the joint debts for you

Article 491 of the texto refundido de la Ley Concursal (TRLC, the consolidated Insolvency Act) puts it plainly: if the debtor is married under gananciales (community of acquisitions) or another community regime and that regime has not been liquidated, a discharge affecting marital debts incurred by the other spouse or by both does not extend to that other spouse until they have obtained the benefit themselves. Discharge is personal: it is earned by whoever goes through their own insolvency and proves good faith, not by the whole family.

Article 492.1 adds to this: discharge does not affect the creditor's rights against those jointly and severally liable with the debtor, nor against guarantors, sureties or a third-party mortgagor, none of whom can rely on it. If you signed the loan with your husband, the bank can pursue you for the whole amount, because the creditor of a joint and several debt may claim from any of the co-debtors (art. 1144 of the Civil Code). For him, by contrast, the extinguished claim can no longer be collected: the creditor keeps only the option of seeking revocation (art. 490 TRLC).

What nobody tells you is that paying the debt yourself does not entitle you to recover it from him afterwards. Article 492.2 makes claims for reimbursement or recourse subject to the discharge on the same terms as the main claim: if you pay off the joint card after the order, you cannot claim his share back from your spouse. So the question is not only whether he can obtain discharge, but what is left standing for you the day after, and that is decided before anything is filed.

Which common assets enter the insolvency of one spouse alone

In the insolvency of a married person, the estate (masa activa) consists of their separate property and, if the regime is community of acquisitions or another community regime, also the community or common assets where they must answer for the debtor's obligations (art. 193 TRLC). The whole family estate does not go in automatically: what goes in are the common assets that answer for his debts. And the order opening the insolvency is served on you as the spouse (art. 33.2), so you will know from the outset.

Which debts are marital debts is decided by the Civil Code. The community bears the costs of supporting the family, acquiring and enjoying common property and the regular running of each spouse's business or profession (art. 1362). Community assets answer directly for debts one spouse incurs in managing the household or in their profession (art. 1365) and, in any event, for those signed by both or by one with the other's express consent (art. 1367). A spouse's own debts are paid first from their separate property and, if that is not enough, the creditor may attach community assets; the other spouse may then require them to be replaced by the debtor's share in the marital community, which dissolves it (art. 1373).

What nobody tells you is that, unlike assets, which are presumed to be community property, there is no presumption that a spouse's debt must be paid from community assets: that was the reasoning, in 2015, of the directorate now called the Dirección General de Seguridad Jurídica y Fe Pública (Directorate-General for Legal Certainty and Public Faith). Each claim is examined with its contract: who signed, for what and in what capacity. Under separation of property it is simpler: only your spouse's property goes in and, if the home belongs to you both in halves, only his half; assets bought by both with a survivorship agreement are treated as divisible and the debtor's half goes in (art. 196 TRLC).

Your defence within the insolvency: dissolve the community or buy out his half

If the inventory of the estate includes community assets that answer for your spouse's debts, you may ask the insolvency judge to dissolve the marital community (art. 125.1 TRLC). Once the application is filed, the judge orders the liquidation, payment of creditors and division of the remainder between you, coordinated with the arrangement or with the liquidation of the estate (art. 125.2). It is the insolvency judge who does this: where the debtor is a natural person, that judge has exclusive jurisdiction over the dissolution and liquidation of the marital community (art. 52.2).

The second tool is article 194: you are entitled to acquire the whole of each community asset included in the estate by paying the estate half its value. The price is agreed with the administración concursal (insolvency administrator) and, failing agreement, set by the judge as market value, after hearing the parties and with an expert report if appropriate. For the marital home the rule is stricter: the higher of its established appraisal value and its market value is taken (art. 194.3).

If you choose dissolution, article 125.3 gives you priority for the marital home, if it is community property, to be allotted to your share as far as that share reaches; if it is worth more, it is only allotted to you if you pay the excess in cash. What nobody tells you is that, on the view the Directorate-General for Legal Certainty and Public Faith restated in 2025, the right to dissolution may be exercised at any time, even after some community asset has been sold, and the debtor cannot oppose it. Comparing both routes with figures, before the home is put up for sale, is what decides the matter.

The family home: joint mortgage, payment plan and guarantors

The mortgage is not discharged within the limit of the special privilege (art. 489.1.8.º TRLC): as long as the debt fits within the value of the security, it must still be paid or the bank enforces. That value is 90 % of the home's fair value, based on an appraisal by a firm approved by the Banco de España (Bank of Spain) unless there is one from the six months before the insolvency, less any prior-ranking charges. If the mortgage debt exceeds that value and a payment plan is chosen, the due dates stay the same but the instalment is recalculated on the covered part; the excess is treated according to its class and whatever is not paid is discharged (art. 492 bis.2).

The payment plan is the route for keeping the main home: it lasts five years instead of three where the home is not sold (art. 497.2), and creditors holding at least 40 % of the dischargeable debt can demand the sale of assets not needed for the debtor's activity, but not the main home (art. 498 bis.1.2.º). The plan must, however, guarantee each creditor at least what it would receive in liquidation (art. 498 bis.1.1.º), and if the home has equity, that shows in the instalment. In liquidation, by contrast, the home is sold within the insolvency, unless you buy it by paying half (art. 194) or have it allotted to you on dissolution (art. 125.3).

What nobody tells you is that recalculating the instalment protects the debtor, not you. If you both signed the mortgage, for the bank you remain a debtor on the terms of the contract (art. 492.1), and so do your parents if they guaranteed it. And if the mortgage is later enforced and the proceeds are enough to pay debt already discharged, the discharge is revoked by operation of law to that extent (art. 492 bis.3). The joint home is planned with both of you in mind, with the appraisal and the outstanding balance on the table.

One spouse, both at once or consolidated: which is better

Spouses may apply for a joint declaration of their voluntary insolvencies (art. 38 TRLC), and a creditor may apply for both when the debtors are spouses (art. 39). If one spouse's insolvency has already been declared, the other's is consolidated with it: either debtor or either insolvency administrator may apply and, failing them, the creditors, even if different courts declared them (art. 41). Joint or consolidated, they are run in a coordinated way without merging the estates (art. 42): each spouse has their own insolvency and needs their own discharge.

That is why each spouse must meet their own requirements: current or imminent insolvency (art. 2), at least two creditors, and good faith with none of the grounds in the closed list of article 487.1, which the judge checks of their own motion even if nobody objects (Tribunal Supremo, the Supreme Court, judgments 259/2026, 261/2026, 262/2026 and 263/2026, of 18 February), plus personal income tax (IRPF) returns for their last three years (art. 501.3). If one has a final very serious tax penalty, that spouse may be left without discharge while the other obtains it. With a payment plan, the household's returns are also provided (art. 495.1).

What nobody tells you is that filing separately and at different times leaves a window open: while you are not in insolvency proceedings, the bank holding the joint debt can go after your salary, and your husband's insolvency does not prevent it. If both of you are insolvent because of the same debts, a joint insolvency is usually the better course. Moreover, the cap on public-law debt applies per debtor and per public creditor (judgments 254/2026 and 260/2026, of 18 February), and each spouse applies it in their own insolvency. If you are not insolvent, you cannot file, and your defence lies in articles 125 and 194.

Unmarried couples, separation of property and divorce with joint debts

Article 491 refers to a matrimonial property regime of community of acquisitions or another community regime. If you have separation of property or are an unmarried couple, there is no community to liquidate, but the rule in article 492.1 applies all the same: a loan signed by both can still be claimed from whichever partner is not discharged. A registered unmarried couple may go into joint insolvency if the judge finds agreements or conclusive facts showing the partners' unequivocal intention to form a common estate (art. 40), and on the same requirements their insolvencies may be consolidated (art. 41.1). The insolvency report (memoria) states the registered partner's identity and the date of registration.

Divorce ends the community of acquisitions (art. 1392 of the Civil Code), and once dissolved it is liquidated, starting with an inventory of assets and liabilities (art. 1396). But until the community's debts are paid in full, creditors keep their claims against the debtor spouse, and the non-debtor spouse answers with the assets allotted to them if a proper inventory was drawn up (art. 1401). The convenio regulador (divorce settlement agreement) settles accounts between the two of you, not with the bank, which did not sign it: if your former husband takes on the joint loan you signed, the bank can still claim it from you.

What nobody tells you is that the order of the steps changes the outcome. Article 491 operates while the regime has not been liquidated; once it has, what counts is what each of you signed and what was allotted, and liquidating does not release you from what you signed. And a liquidation that empties the estate of the spouse about to file turns against them: the judge checks good faith of their own motion, and concealing assets, rights or income is a ground for revocation for three years (art. 493). Divorce, liquidation and insolvency are designed together, with both spouses' inventories in view.

How we run the case, step by step

1. 1

   Establish the regime and who signed each debt

   With the marriage certificate from the Registro Civil (Civil Registry) and, if any, the marriage settlement (capitulaciones), the property regime is established; with each contract, who signed each debt and in what capacity (holder, co-holder or guarantor). That shows which debts are marital, which are separate and whom each creditor can pursue.

2. 2

   Assess each spouse's insolvency and good faith

   We review separately the grounds in article 487.1 TRLC (convictions, very serious penalties, derivative liability decisions, reckless borrowing) and whether each spouse is in current or imminent insolvency. That decides whether both file at once, only one files, or one files now and the other is consolidated later.

3. 3

   A special power of attorney from each spouse

   Each spouse grants our procurador a special power of attorney to apply for insolvency (art. 6.2 TRLC), free of charge and in person before the court clerk of any court office, without a digital certificate or Cl@ve. We never ask for your digital certificate.

4. 4

   An application listing every debt, joint ones included

   A report naming the spouse, the date of marriage, the regime and any marriage settlement; an inventory stating for each asset whether it is separate, community or jointly owned, with its charges; and a list of creditors with every debt, including those the other spouse pays today: what is not listed is not discharged (judgments 254/2026 and 260/2026).

5. 5

   Decide on the home with figures

   With the appraisal and the mortgage balance, we compare a five-year payment plan, purchase by paying half (art. 194) and allotment on dissolving the community (art. 125.3), and choose before the home is put up for sale in the liquidation.

6. 6

   Discharge on time and protection after the order

   Discharge is sought within the period for each route. Once granted with liquidation, or finally after the plan, the order directs the affected creditors to notify the discharge to the credit-reference files they reported the default to; our procurador obtains a certified copy to require those files directly to update their records (art. 492 ter), and we deal with any later claim for discharged debt.

The law that applies

• Art. 491 TRLC. If the debtor is under a community of acquisitions or another community regime not yet liquidated, discharge of marital debts incurred by the spouse or by both does not extend to the spouse until they obtain discharge themselves. BOE-A-2020-4859
• Arts. 492 y 492 bis TRLC. Discharge does not affect the creditor's rights against joint and several co-debtors, guarantors, sureties, insurers or a third-party mortgagor, and claims for reimbursement are affected like the main claim. With security over property, debt exceeding the value of the security is treated in the plan according to its class and the instalment is recalculated on the covered part. BOE-A-2020-4859
• Arts. 38, 40, 41 y 42 TRLC. Spouses may apply for a joint declaration of their voluntary insolvencies; a registered unmarried couple, where there is an unequivocal intention to form a common estate. Insolvencies already declared are consolidated even if declared by different courts, and are run in a coordinated way without merging the estates. BOE-A-2020-4859
• Arts. 125, 193 y 194 TRLC. The insolvency of a married person includes their separate property and the community assets that must answer for their obligations. The spouse may request dissolution of the marital community, with priority for the main home in their share, or acquire each community asset by paying half its value; the home is valued at the higher of appraisal and market value. BOE-A-2020-4859
• Arts. 501 y 502 TRLC. They set when discharge is sought after liquidation or in a no-asset insolvency, with income tax returns for the last three years, ten days for the insolvency administrator and creditors to respond and verification of the requirements by the judge even if nobody objects; any opposition is decided in an insolvency side proceeding. BOE-A-2020-4859
• Arts. 1362, 1365, 1367 y 1373 del Código Civil. They determine which expenses the community of acquisitions bears and when common assets answer: directly for one spouse's household or professional debts, always for those signed by both, and subsidiarily for one spouse's own debts, with the other's right to replace the attachment with the debtor's share. BOE-A-1889-4763
• Arts. 1392, 1396 y 1401 del Código Civil. The community of acquisitions ends when the marriage is dissolved, it is liquidated starting with an inventory of assets and liabilities, and until its debts are paid in full creditors keep their claims against the debtor spouse; the non-debtor spouse answers with what was allotted if an inventory was made. BOE-A-1889-4763

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions