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Reasons to Use Chapter 13 Instead of Chapter 7


In some situations, it makes sense to file for Chapter 13.

Many debtors choose not to file for Chapter 13 because it requires repayment of at least a portion of their debts (unlike Chapter 7, which wipes out many debts entirely ). In some situations, however, Chapter 13 is the better bankruptcy option. And certain debtors don't get to choose: Not everyone is eligible for Chapter 7.

Here are some good reasons to file for Chapter 13:

You cannot file for Chapter 7. If you have received a Chapter 7 bankruptcy discharge within the last eight years, or a Chapter 13 discharge within the last six years, you may not file for Chapter 7. In addition, you won't be allowed to file for Chapter 7 if you cannot meet some new requirements imposed by the 2005 revisions to the bankruptcy law.

Under these new rules, you cannot file for Chapter 7 if both of the following are true:

  • your current monthly income over the six months prior to your filing date is more than the median income for a family of your size in your state (go to the website of the United States Trustee, http://www.usdoj.gov/ust, and click "Means Testing Information" to see the median figures for your state), and
  • your disposable income, after subtracting certain expenses and monthly payments for debts you would have to repay in Chapter 13, either exceeds $166.66 per month, or exceeds $100 per month and would repay more than 25% of your unsecured, nonpriority debts (debts for which you haven't pledged collateral and which are not for child support, alimony, employee wages, or back taxes) over a five-year period. This complicated calculation is commonly referred to as the "means test" -- if you have the means to repay a certain amount of your debt through a Chapter 13 repayment plan, you flunk the test and are ineligible for Chapter 7. (For more information, see 'Who Can File for Chapter 7 Bankruptcy.)
 
The Math Can Get Confusing

As you can see, these calculations are a bit complex. And to make matters worse, Congress has its own definitions of "disposable income," "current monthly income," "expenses," and other important terms, which typically operate to make your income seem higher, and your expenses lower, than they actually are.

You can find step-by-step instructions for figuring out whether you qualify for Chapter 7 under these new rules in The New Bankruptcy: Will It Work for You?, by Stephen Elias (available December 1, 2005 from Nolo). For information on exactly which income, expenses, and debts you should plug into these equations, see the official bankruptcy court form on which you'll have to make them: Form B22A, Statement of Monthly Income and Means Test Calculation. You can find it at the website of the federal bankruptcy courts, http://www.uscourts.gov/bankruptcycourts.html (click "Interim Bankruptcy Rules" to get to the forms).

Copyright 2006 Nolo

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