In Re Masterson , 1985 Bankr. LEXIS 4787 ( 1985 )

55 B.R. 648 (1985)

In re John P. MASTERSON, Debtor.

Bankruptcy No. 85-00353E, Motion No. 85-158E.

United States Bankruptcy Court, W.D. Pennsylvania.

December 12, 1985.

Denis W. Krill, Erie, Pa., for debtor.

W. Gustave McGeorge, Erie, Pa., for Jeannine M. Masterson, petitioner.

MEMORANDUM OPINION AND ORDER ON PETITION TO JOIN AS CO-DEBTOR

WARREN W. BENTZ, Bankruptcy Judge.

Jeannine M. Masterson, wife of the above-captioned Debtor, has filed a PETITION TO JOIN AS CO-DEBTOR in the above matter, asserting that she desires to join in the above bankruptcy as a Co-Debtor and that it would work an undue hardship upon her to require her to file her separate petition. John P. Masterson and Jeannine M. Masterson are now engaged in a divorce action in the Court of Common Pleas of Erie County, Pennsylvania.

The facts are not in dispute. The matter has been heard and argued before the Court.

The issue is whether the Bankruptcy Code permits a wife to join voluntarily as a Co-debtor in a pending bankruptcy proceeding commenced by the husband. It is noted that the husband-debtor objects to such joinder.

§ 302(b) makes it clear that, even in a joint case, the debtors' estates are not consolidated automatically; the two estates are consolidated only if it is subsequently determined by the court that they should be consolidated. It is clear, therefore, that the two estates are separate even in a joint case.

Under § 302(a), a joint case is commenced by the filing "of a single petition" by the individual debtor and his spouse. The plain language of this section indicates that a joint case may only involve a "single petition." John P. Masterson has already filed his petition and there is no apparent procedural device by which an additional party can be made a debtor under that single petition.

We need not consider whether the original "single petition" may be amended so as to include Jeannine M. Masterson, because John P. Masterson, the original debtor, does not consent to such amendment.

It therefore appears that there is no alternative but to deny the petition of Jeannine M. Masterson to join in the above proceeding as a Co-Debtor. For the foregoing reasons, the petition of Jeannine M. Masterson shall be, and it hereby is, refused.