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The non-filing spouse's income is only to be considered to the extent that the income is used to pay the debtor and his dependent's household expenses.
The case of In re Grubbs, ___ B.R. ___, 2007 WL(NNN) NNN-NNNN(Bkrtcy.E.D.Va. December 14, 2007)(Huennekens, J.) was presented with the issue of whether section 1325(b)(4)(A)(ii) requires the court to include the current monthly income ("CMI")of the debtor's nonfiling spouse in addition to that of the debtor in determining the "applicable commitment period" for the chapter 13 plan. The court held that based on the definition of CMI, the income of the nonfiling spouse is used only to the extent that the income is used to pay the debtor and his dependent's household expenses on a regular basis.
The court explained that section 1325(b)(4)(A)(ii) provides that a court should consider the CMI of the "debtor and the debtor's spouse" to determine the applicable commitment period. The court noted that a spouse only has CMI in a jointly filed case pursuant to the definition of CMI in section 101(10A)(A). In a single case filed by a married person, CMI only refers to the income of the debtor. See In re Barnes, 378 B.R. 774 (Bkrtcy.D.S.C. 2007). In re Quarterman, 342 B.R. 647, 650 (Bankr.M.D.Fla.2006)(Proctor, J.)(CMI does not include all of the income of the nonfiling spouse but only amounts expended on a regular basis for household expenses of the debtor or his dependents), 8 Collier on Bankruptcy, para. 1325.08[d](Lawrence P. King ed., 15th ed. rev 2007). The court further explained that CMI includes the portion of the income of the debtor's nonfiling spouse that is regularly contributed toward the household expenses of the debtor or the debtor's dependents.
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The trustee should only consider a portion of the nonfiling spouse's income. The nonfiling spouse's income should only be used to the extent that it is regularly used for household expenses.
Here is an example: If the nonfiling spouse makes $1000 per month and contributes 80% of that income to the household for expenses, then the trustee should consider only $800 of the nonfiling spouse's income.
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