When one spouse files question

[cyn5]

I kind of asked this in another question, but thought I had better separate it out. I am not in a community prop state and I am probably going to file bk, but not my spouse (actally common law in our state) and have 1 child. First, is all spousal income considered for means test or just a portion? Second, if all spousal income is considered then are their debts also put on the means test as well even if they are not filing because obviously ALL of their income is not going towards the filing spouse's debts? Thanks:-)

[chloe0724]

I also filed anb my spouse did not. All income is counted. All of your spouses expenses are counted as well. The only problem you may run in to is if your spouse has credit cards that are only in their name and have balances and payments. The Trustee doesn't like it if you are not paying your unsecured's back, but your spouse is. So you may have to leave it out of the expense list. Your attorney would be able to let you know how your local Trustee feels about this.

[mrbsf]

...The Trustee doesn't like it if you are not paying your unsecured's back, but your spouse is. So you may have to leave it out of the expense list...

You won't...in the case of a married couple the Trustee will look at household income and expenses minus debt scheduled to be discharged on your side of the ledger (ie. unsecured debt).

[cyn5]

Thank for the info....yep, I wouldn't think you could leave out unsecured debt on spouse side if they are not filing. We may end up both filing, but just wanted to know about if only one files. Thanks:-)

[mrbsf]

...I wouldn't think you could leave out unsecured debt on spouse side if they are not filing...

Just to clarify...you wouldn't and shouldn't leave out your spouse's debt payments of any kind when it comes to means testing. However, if you file individually from your spouse, obviously you wouldn't list your spouse's debt(s) for discharge. B/C if he didn't file with you, he would still be responsible for all debts in his name.

[chloe0724]

Please ask your attorney. My trustee WOULD NOT let me include my husband's credit card payment as part of my means test. The trustee was very clear about that.

[cyn5]

okay, now am a little confused. I noticed on the means test there was an area for income from spouse that is not used towards the spouses debts (so it doesn't specifically ask for a breakdown of the debts of non-filing spouse). So even though it asks for total household income, etc it seems like as long as the other spouse can show proof that their entire income does not go towards the filing spouse's debts, you are okay. I can undersand the individual debts of non-filing spouse not included on means test, but what about the area where is states to list the amount of money not going towards filing spouse's debt...which in reality could be all of the income of the non-filing spouse. There is no way they can tell you to include all household income, but not be able to take it off since the other spouse has their own debts as well. Sorry...I think I am rambling!!

[woeisme]

I think it is one of those things that varies by district and trustee. I was originally planning to file alone, as a lot of the debt was in my name alone. Lawyer said that we could include hubby's debt payments to reduce disposable income, but said the trustee only allowed minimum payments on these during the CH 13 plan. Well, figuring min payments with high interest rates, we'd come out of BK still owing almost all of his debt, so decided to file joint after all. The other thing the lawyer said to me was that spouse couldn't continue to use his credit cards, because the trustee wouldn't allow for higher payments if his minimum payment went up. This really worried me at the time since any change in interest rate (say because his spouse filed BK and some of the debts were joint!) would cause those payments to jack up, so again, why we decided to file joint after all.

[mrbsf]

On the Schedule J, line 13b & 13c you can list your non-filing spouse's debt payments. (ie. car payment, monthly cc payment). These are part of your household expenses. It may vary from district to district, but my Trustee had no problem with it.

[outsidetool]

I recently completed a 7; I filed, my wife did not. My wife made a little more than me, and the house is in her name only. In our budget, and to justify the 7 for me, we put down realistic expenses, including my wife's payments on her unsecured credit card debts, payments for her kids soccer involvement, an allotment for her to buy xmas and birthday gifts, etc. We put in all the stuff that she usually does, and of which I'd had no control over for the last several years anyway. Yes, the Trustee was not happy, and was looking closely at filing a motion to dismiss and force a Ch13 conversion--my attorney was rather willing to take them on, essentially dared them to haul my 'non-filing spouse' in to court and ask her questions about her expenses, tax withholding, etc. Then my wife wrote the trustee a letter--my wife was pissed that she was getting dragged in to the whole thing--and she made it clear that she didn't file bankruptcy and wasn't about to follow the court's, trustee's or my wants one way or another. Made it clear that any excess money she had was going to continue going to her debts and normal way of life, and that my probs were just that--my probs. After a few day stare-down session between the trustee's office and my attorney, the trustee's office backed down. Granted, there were a few things to our situation that may have been unique, such as my wife's income being higher than mine, the house being just in her name, and the fact that we have maintained separate checking accounts. Also, for taxes some years we've filed joint,others separate. All these things seemed to be subjects that were of interest to the trustee. In the end, it all worked out. What u really need is an attorney who is a bulldog and has a genuine hatred for the trustee's office. I had to go through 8 other attorneys before finding one that even agreed that I could do a 7.

[catleg]

What u really need is an attorney who is a bulldog and has a genuine hatred for the trustee's office. I had to go through 8 other attorneys before finding one that even agreed that I could do a 7.

Bingo. Too many lawyers just want easy cookie cutter cases and don't advocate for the client.