Will I pass the means test in bankruptcy but I have a spouse who makes good money but is not filing?
July 1, 2011 Leave a comment
Good news! That is okay! Generally a non-filing spouse’s income is included in the bankruptcy means test as household income even if the spouse is not filing bankruptcy unless the spouses live apart. But if your marriage is a recent marriage of less than six months then not all of the non-filing spouse’s income will be included in the household income calculation anyway.
If it is a marriage longer than six months then there is something called the marital adjustment which will allow you to reduce the amount of your spouse’s income that will appear on the means test. The marital adjustment appears on line 17 of the means test form 22A. There are several lines there but you can add an attachment as I did recently in a case. This marital deduction allows you to deduct from your spouse’s income all of your spouse’s expenses that your spouse pays separately.
The first one is the deductions that come out of the non-filing spouse’s paycheck. The non-filing spouse will have taxes, insurance, union dues and even a retirement deductions taken out of his or her paycheck. The income for the spouse goes into the means test in the gross amount but the deductions are taken out here. The retirement can be included here where it would not be for the filing spouse unless the filing spouse had a mandatory retirement.
Remember that this spouse is not filing bankruptcy and can spend money and take deductions as needed. The non-filing spouse is not attempting to discharge their debts so the trustee has much less control over what they take on deductions than he or she would over a party that is filing for bankruptcy. But still the Trustee can challenge these marital deductions so it is good to have a bankruptcy attorney to analyze which ones can be justified.
The non-filing spouse can also take his or her credit card payments as marital deductions. These payments will have to be made after the bankruptcy as they are not being discharged and thus they can be taken here. If the non-filing spouse has a car of their own then they can take those car expenses there too if they have not already been taken in the car section of the means test. The same would go for a separate cell phone.
There are other expenses too like separate student loan payments that the non-filing spouse can take. Also if they have traveling or food expenses for themselves or if they pay child support for a child from a previous marriage then they can take those expenses. Anything that is truly an expense just for them and was not paid on a regular basis for the household expenses for the debtor or the debtor’s dependants.
This gives you a lot of leeway for expenses to be included here that you or your attorney can come up with that meet this criteria. Most people do have these expenses that are separate and distinct from the expenses that are contributed to the household. This is because most people, even if married, these days have separate and distinct lives. They may have many debts and obligations and expenses left over from before the marriage or just expenses that are truly just for them.
So don’t despair if you don’t pass the means test with your spouse’s income. The marital deduction sections may make bankruptcy possible. If it seems too complicated then contact a bankruptcy attorney who will help you decide which expenses can be taken on the marital deduction section of the bankruptcy means test.
I am a San Diego bankruptcy attorney. For further questions please visit my websites at www.farquharlaw.com or www.freshstartsandiego.com. Or call my office for a free consultation at (619) 702-5015. Call now for free credit report and analysis!
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