Current Monthly Income

This is a simple question to pose, but the answer is a bit more complicated to give.  Part of the complication lies in the fact that in bankruptcy social security has two identities:  it is income, and it is an asset.  The rest of the complication arises because there is more than one chapter of the Bankruptcy Code under which individuals and married couples file.

I.          Social Security Income As An Asset

In any personal bankruptcy, one of the reporting requirements is found in 11 U.S.C. § 521(a)(1)(B)(i):  “The debtor shall—file—  . . . a schedule of assets . . .”  Social security payments are an asset, and become part of the bankruptcy estate that is created when the debtor files for bankruptcy protection.  (See 11 U.S.C. § 541(a)).
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This easy question to state has a surprisingly complicated answer.  This is bad news if you were hoping for a simple yes or no, but good news if you’re a fan of more complex legal analysis.  In this post, I’ll discuss retirement contributions within the Chapter 7 context.  In my next post, I’ll discuss retirement contributions in a Chapter 13 bankruptcy.

I.          Retirement Contributions In A Chapter 7 Bankruptcy

There are at least two reasons why Chapter 7 debtors would want to continue contributing to their retirement plans (for linguistic simplicity, let’s assume we’re dealing with a 401(k) plan, since it’s easier to type “401(k)” than “retirement plan”):  First, to provide for those golden years of not having to spend two plus hours a day commuting (those of you who don’t live in a traffic nightmare area like the Los Angeles environs may not understand this problem except on a theoretical level, but it’s very real here), and second, to chew up income to qualify for Chapter 7 relief.
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The popular wisdom says that an individual or a married couple can file for bankruptcy under either chapter 7 to discharge debts without paying them, or chapter 13 to pay back some of the debts through a court-administered, multi-year, partial debt repayment plan, while a business files under chapter 7 if it is going out of business, or chapter 11 if it needs to reorganize.  There is some truth to this wisdom, but it fails to take into consideration the personal chapter 11 bankruptcy.  This post looks briefly at just a few characteristics of personal chapter 11 bankruptcy.
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