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Means test and household size question

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  • Means test and household size question

    Here is my dilemma. I am divorced pay a hefty alimony and child support payment. I do not pass the means test just by my self. My daughter is with me twice a week and every other weekend. My significant other lives in the house and does not contribute more than $200 in household expenses and her two boys live with us as well(she and her boys have lived with me for 1 year). We are not married but plan to marry eventually. She makes very little money. If I add her $200 to the means test I pass it when I figure a house hold of 4 (her two boys, herself and myself.) Is this going to be a issue? I am posting a excerpt from another ruling that would appear they can be included in the means test as being part of the house hold and I would have to add her income of $200 is this correct? I have a meeting Monday morning to start the process with the attorney and printed this out for them in case there is an issue. Just concerned as if I have to do a 13 I am screwed.


    Article from another site below




    n re Ellringer, 2007 WL 1976750 (Bkrtcy.D. Minn. 2007) (Robert J. Kressel, J.)
    Chapter 7 debtor was married and lived with a 3rd person who was not a dependent. That person regularly contributed $600 to the household budget, most of which was used to pay for their own living expenses. Debtor compared their income to a household of 1, which resulted in an above-median income. Debtor excluded the $600 contributed by the 3rd person. Trustee argued that the 3rd person should not be included in the household count OR if counted then the $600 should be included in the debtor’s income. The UST advocated using the definition of “household” found in the Internal Revenue Manuel. Trouble was that the IRM does not actually define the term household and instead simply indicates that the number of persons allowed under the national standard expenses should generally be the same as the number of dependents on the taxpayer’s latest income tax return. See IRM §5.15.1.7 (2004). Court rejected this argument and held that

    “The Census Bureau defines “household” as “all of the people, related and unrelated, who occupy a housing unit.” U.S. Census Bureau, Current Population Survey (2004). A housing unit is a house, apartment, group of rooms or single room that is intended for occupancy as a separate living quarters. Id. Households may be either family or nonfamily. Id. Family households include the householder and all the other people in the living quarters who are related to the householder by birth, marriage, or adoption. Id. A nonfamily household consists of a householder living alone, or a householder who shares the home exclusively with people to whom he or she is not related. Id. If Congress had intended to limit household size to only household members related by blood, marriage or adoption, it could have done so by saying “in the case of a debtor in a family of 2 . . . .”





    The Court further held that the Code only requires to be included in the median income and means tests that portion of a non-filing household member’s income that is regularly contributed to the “ … household expenses of the debtor or the debtor’s dependents.” See §101(10A).

  • #2
    Hi redwinger,

    You live in MN which is where that case was decided...good news! The courts are split between the Census or IRS household definitions, definitely something to run past your attorney. Another issue to ask your attorney: can the alimony and child support be deducted from income on the means-test.

    Good luck with this,

    Tom in Colo
    Ch7 filed 5/12/2010.....341 meeting 6/30/2010....report of no distribution 8/15/2010.....discharged 10/01/2010.....closed 11/09/2010

    Comment


    • #3
      Update:

      Met with my Attorney and she was familiar with that case as she knows the lead attorney on that case. She stated it won't be a problem. We are filing on Wednesday. I feel pretty confident now after speaking with her about my concerns.

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      • #4
        Good job redwinger! Let us know how it turns out..

        Tom in Colo
        Ch7 filed 5/12/2010.....341 meeting 6/30/2010....report of no distribution 8/15/2010.....discharged 10/01/2010.....closed 11/09/2010

        Comment


        • #5
          Keep us posted Redwinger.

          Comment

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