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Determining eligibility for Chapter 7 bankruptcy is a two-step process. If the debtor’s “current monthly income” is below the applicable state median, then the debtor qualifies for Chapter 7 bankruptcy. Debtors with current monthly income above the state median income must pass what is known as the “Means Test”.
The means test is a calculation to determine whether a debtor, whose current monthly income exceeds the state median income, qualifies for Chapter 7 bankruptcy. The calculation starts with the debtor’s current monthly income, and then subtracts certain deductions, including taxes, living expenses and payment of certain types of debts. If the resulting figure is above a certain amount, the debtor does not pass the means test and will generally be unable to file under Chapter 7.
Determining whether Chapter 7 bankruptcy is appropriate and legally available is a complex process, which should be handled by an experienced bankruptcy attorney.
Contact the law firm of Andrew M. Doktofsky, P.C., at (631) 673-9600, for a free consultation regarding the means test and whether you qualify for bankruptcy. Attorney Andrew M. Doktofsky’s practice is focused on consumer bankruptcy law and he possesses the knowledge and experience necessary to guide you through a successful bankruptcy filing in Suffolk County or Nassau County. Call Andrew M. Doktofsky, P.C. today if you have questions about filing for bankruptcy in Deer Park, Babylon, West Islip, Farmingdale, Brentwood, Hauppauge, Huntington, and surrounding areas.
Median income for each state is published by the U.S. Census Bureau. It is updated each year based on family income reported to the Census Bureau.
Median income varies state by state. In the state of New York, the median income is as follows:
For families exceeding four members, $8,400 should be added to each additional individual to determine the state median.
When calculating state median income, it is important to use the current information from the Census Bureau, as it is updated annually and is subject to change.
Debtors seeking to file for Chapter 7 bankruptcy must first determine whether their “current monthly income” is less than, or exceeds, the state median income. Current monthly income is the average income for the six full months preceding the month of the bankruptcy filing. It is based on gross income (i.e. before taxes, insurance, etc.), and includes almost all forms of income (except social security income), including:
Income earned by the debtor’s spouse is included, even if the spouse is not filing for bankruptcy. However, if the debtor and spouse are living apart, or are legally separated, the spouse’s income is not included. The debtor must declare under penalty of perjury that the debtor and spouse are not living apart for purposes of evading the means test.
Debtors whose current monthly income is less than the state median are not required to complete the means test prior to filing for Chapter 7 bankruptcy. However, debtors with current monthly income in excess of the state median income must complete the means test.
Starting with the debtor’s current monthly income, the first step in the means test calculation is what is known as the “marital adjustment”. In Chapter 7, the marital adjustment only applies in cases where the debtor is 1) married 2) living in the same household with their spouse and 3) the spouse is not filing for bankruptcy. The purpose of the marital adjustment is to subtract income of the spouse that is not regularly used to pay for the household expenses of the debtor or the debtor’s dependents. Such expenses may include:
The total marital adjustment cannot exceed the spouse’s monthly gross income (based on average of six months preceding the bankruptcy filing).
After deducting the above expenses of the debtor’s non-filing spouse, the amount remaining is the “adjusted current monthly income”.
Under the means test, a debtor may deduct certain expenses from current monthly income.
All deductions are not calculated the same. Deductions fall into one of the following categories:
Applying the deductions can be complex and confusing. An experienced bankruptcy attorney will ensure that the means test is calculated properly.
National Standards for Living and Healthcare Expenses
For means testing purposes, certain deductions must be calculated using a national standard. This is a set figure established by the Internal Revenue Service (IRS). The figure does not consider the actual amount spent by the debtor on the particular expense. There are two deductions on the means test that utilize the national standards.
Based on the most current IRS table, the maximum a single debtor can deduct for food, clothing, and other items is $570, irrespective of the amount actually spent.
The out of pocket health care allowance is currently $54 per person under the age of 65, and $130 per person for those 65 and older.
Local Standards for Housing and Transportation Expenses
Similar to the national standard, local standards are set figures that a debtor may deduct from his or her current monthly income. The local standards are specific to the state and county in which the debtor resides. Generally, a debtor may deduct the local standard or the amount actually spent on a particular expense, whichever is less.
Local Standards for Housing Expenses
The local standard amount for housing costs depends on the state and county in which the debtor resides, and the size of the debtor’s family. The following expenses are included in the housing and utility expense:
It is imperative to properly identify the county of residence when calculating the local standard for housing and utilities. For example, the maximum mortgage/rent deduction for a single debtor differs significantly from Suffolk County, NY to Nassau County, NY.
In Suffolk County, the maximum a single debtor may deduct for mortgage or rent expense is $1,920, while in Nassau County a debtor may deduct $2,199 for the same expense.
An individual contemplating bankruptcy, and who is planning to move to a new residence, must consider the impact that moving to a different county can have on their ability to file under Chapter 7.
Local Standards for Transportation Expenses
Calculating transportation expenses involves three separate types of expenses – 1) vehicle operating expense; 2) vehicle ownership expense; and 3) public transportation expense. A debtor may deduct the allowable transportation expense or the actual amount spent, whichever is less.
Vehicle Operating Expense
Only debtors that own, lease, or pay the operating expenses for a vehicle may take a deduction for vehicle operating expense. Operating costs are calculated using a local standard and vary based on region. Operating costs include the following:
In New York State, debtors residing in Bronx, Dutchess, Kings, Nassau, New York, Orange, Putnam, Queens, Richmond, Rockland, Suffolk, and Westchester counties may deduct a vehicle operating expense of $308 for one automobile, or $616 for two vehicles. In any other county in New York State, the vehicle operating expense is $251 for one automobile, or $502 for two vehicles.
Vehicle Ownership Expense
A debtor may claim the vehicle ownership expense only if the debtor either owns a vehicle and is making loan payments for the vehicle, or is leasing a vehicle. Although it is considered a local standard, the allowable deduction is the same throughout the U.S. The deduction is $471 for one vehicle, and $942 for two vehicles. Generally, a debtor whose household contains a single driver may claim an ownership expense for only one vehicle. A debtor may not claim an ownership expense for more than two vehicles.
Public Transportation Expense
Debtors that do not claim a vehicle operating or ownership expense may claim the full public transportation allowance, regardless of whether they use public transportation. The public transportation expense is $173 throughout the U.S.
Debtors that claim a vehicle operating or ownership expense may also claim a public transportation expense, up to a maximum of $173, if they actually incur public transportation expenses.
In addition to the expenses listed above, debtors may deduct their actual monthly expenses for the following categories:
Debtors may deduct the average monthly payment for secured debts that are contractually due within the sixty month period after the filing of the bankruptcy. Examples of secured debts are those owed for automobile loans, mortgages, and home equity loans. Mortgage debts include property taxes, and property insurance, even if these expenses are paid directly by the debtor, i.e. not through the mortgage lender.
If there are more than sixty months of payments remaining on the loan, then the actual monthly payment will be the same as the sixty month average. However, if there are less than sixty months remaining, then the total remaining payments must be added up, and divided by sixty, to determine the average monthly payment due.
The deduction for secured debts is not in addition to the deduction for vehicle ownership expense, or the deduction for housing expense. However, to the extent that payment for secured debt exceeds the vehicle ownership or housing expense, then the debtor may deduct the higher amount. For example, if the average monthly payment for a debtor’s automobile loan exceeds $517 per month, then the debtor may deduct the higher amount.
Keep in mind that excessively high monthly payments for luxury automobiles may be questioned by a bankruptcy trustee or the U.S. Trustee’s Office, and may be cause for a motion to dismiss a case on the grounds that the case is an abuse of the provisions of Chapter 7.
In addition to the average monthly payment, a debtor who has fallen behind on payments for a secured loan may deduct the amount necessary to bring the loan current (the cure amount), divided by sixty. This provision only applies to property that is necessary for the support of the debtor or the debtor’s dependents. In other words, an objection could be raised if a debtor deducts arrears owed for a pleasure boat or recreational vehicle.
Amounts due for priority debts, including domestic support obligations and priority income taxes, may be deducted on the means test. This provision applies to amounts that are past due, not ongoing obligations (which are included in “other expenses”). The total amount owed is divided by sixty.
To determine if a debtor passes the Chapter 7 means test, subtract all allowable deductions, as detailed above, from the debtor’s “adjusted current monthly income” to arrive at the debtor’s “monthly disposable income”.
The Chapter 7 means test is a “pass-fail” test. An individual “passes” the means test if:
If the debtor passes the means test, then there is no “presumption of abuse”. This means that, from the standpoint of the debtor’s income, the debtor qualifies to file for Chapter 7. Keep in mind, however, that there are many other factors that go into determining if a Chapter 7 bankruptcy filing is appropriate in a particular individual’s situation.
If a debtor does not pass the means test, then a “presumption of abuse” arises. This does not literally mean a debtor is abusing the bankruptcy system, rather that Chapter 7 bankruptcy relief should not be granted.
A debtor can rebut the presumption that filing for Chapter 7 is abusive by a showing of “special circumstances”. Special circumstances may apply to either means test income or expenses.
On the income side, the debtor may be able to demonstrate that the debtor’s income has been reduced from the six-month average that formed the basis of the “current monthly income “. Or there may have been unusual or one-time additional income that the debtor will not be receiving again, such as retroactive pay or severance pay.
On the expense side, a debtor would have to show that he or she incurs expenses that are not included in the allowable expenses included in the means test.
To establish special circumstances, a debtor must itemize each additional expense, or adjustment to income, and provide supporting documentation. In addition, a detailed explanation as to the special circumstances that make such expenses, or adjustments to income, necessary and reasonable, must be provided. The debtor must also provide a sworn statement attesting to the accuracy of any information provided to demonstrate that the additional expenses or adjustments to income are required.
Finally, the additional expenses, or adjustments to income, must be sufficient to reduce the debtor’s monthly disposable income below the Chapter 7 means test limits, as described above.
If an individual contemplating bankruptcy does not pass the means test, the next step would be to determine if waiting a period of time would change the means test outcome. A debtor whose income is variable might be able to pass the means test by waiting until their six-month average income was sufficiently lower. For example, this might apply to an employee that works overtime only during particular times of the year.
Likewise, it is possible that waiting to file the bankruptcy case would permit the debtor to claim certain deductions on the means test. For example, a debtor may be planning to move to a state or county where the local standards for housing expenses are higher. Or perhaps the debtor’s situation will allow him or her to finance an automobile purchase, or to lease a vehicle, prior to filing for bankruptcy, thus allowing the debtor to claim the vehicle ownership deduction.
Individuals in need of bankruptcy relief, and for whom waiting to file will not bring them below the Chapter 7 means test limits, may be able to file for bankruptcy under Chapter 13.
Contact the law firm of Andrew M. Doktofsky, P.C. today for a free consultation about filing for bankruptcy in Suffolk County and Nassau County in New York. This includes Bay Shore, Lindenhurst, Commack, Huntington Station, Northport, Levittown, Amityville, and surrounding communities. Call (631) 673-9600 for a consultation about whether you qualify to file for Chapter 7 bankruptcy.