Bankruptcy: Means Test
and how to pass it if you need to
This is a long article.
Useful information you won’t find anywhere else.
All you really need to know about the means test.
Most come here to see if they can file a chapter 7.
The means test is supposed to tell you if you can file chapter 7, or, if you have to file chapter 13.
Supposed to. But does it?
Answer (caution… legalese here) it depends.
If (big IF) you just approach the means test mechanically, (the way most attorneys I know seem to), then it does just that.
But, if your attorney is experienced, the attorney may know ways to manipulate the means test, legally (of course), so that you pass the test and may be eligible for chapter 7 (or a chapter 13 that actually pay back virtually NOTHING to unsecured creditors, which is sometimes BETTER than filing chapter 7).
The first thing to understand is when the test applies, and when it doesn’t.
The first step is to compare your current income for your family size (and this means you can disregard 99% of all the websites you will find that discuss the means test. Almost none of them update their figures).
For accurate information go here: https://www.justice.gov/ust/eo/bapcpa/meanstesting.htm to see the current figures for your state.
But note, as I explain below, your “income” may not be your actual income at this moment!
And, figuring out your family size may be tricky.
What about the children of divorced parents?
What if you have shared parenting? (Warning, more legalese on the way…)
Although bankruptcy law is federal the application can vary from one state to another and even vary within the state. So, in Columbus, Cincinnati and Dayton Ohio, for example, either parent can claim the children.
So if the divorced parents each file bankruptcy, they can both claim the children for means test purposes.
Do you have to be able to claim the children on your taxes?
What if you don’t claim the children on your tax return? Can you still claim them as household members for means test purposes.
What if your child is living with you, and you support him 100% but he’s over 18?
Is he a student? If so, then you can probably claim him as a household member even though he is over 18 and even if you don’t claim him on your tax return.
What if the child is over 18, not a student but has special needs, and is not able to support himself?
On a case by case basis, I have been able to claim adult children in this situation as household members for mean test calculation.
What about elderly parents?
What if you support them, but they don’t live with you?
Again it depends. But if you have been contributing to their support for some time, the amount you have been regularly contributing to their support can be a deduction to help you pass the means test even if you cannot claim them on your tax return.
What about situations where you are supporting a child, perhaps a grandchild, but there is not court ordered custody, no support order and the actual parent is claiming the child as a dependent (even though YOU are totally supporting the child).
On a case by case basis, I have been able to claim children my clients are supporting as family members for means test purposes.
What if your income is below the median for your family size?
Stop, go no further.
You are done.
No means test for you.
How did you calculate your income?
The mean test says it measures current income.
But it doesn’t.
Not, at least, in the way you would think.
In fact, the legal calculation of current income for means test is the average for the 6 month period before the bankruptcy case is filed.
What if you just lost your job?
What if you took a cut in pay?
What if your overtime was suddenly taken away?
Your 6 month average would include income no longer coming in to you.
You could fail the means test but really should be eligible for chapter 7 based on today’s income level.
And, what if your income is above the median?
Then you keep going into the sometimes fantasy world of the means test.