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Ellen
Ellen, Attorney
Category: Bankruptcy Law
Satisfied Customers: 36714
Experience:  Bankruptcy Lawyer. Experienced.
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re chapter 13 bankruptcy

Customer Question

i know in a chapter 13 the trustee uses both married spouses income to determine the monthly payback my question is   can the trustee make the filing spouse pay more each month than the spouse brings home??? i e use the non filing spouse income to supplement the filing spouses payback
Submitted: 8 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 8 years ago.

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[5][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.

Customer: replied 8 years ago.
not sure what you are saying let me tell you the situation my wife has filed chapterXXXXXused my income and hers to determine that she must pay 860 a month   her attorney filed as a 100% payback case   then   2 other creditors joined the case and put the amount owed where she would have to repay 1400 a month   well she only brings home 1100 a month    i think the attorney was wrong to file as a 100% plan to start with but now we dont know what to do because we cannot even together pay the 1400
Expert:  Roger replied 8 years ago.
You'll have to get your attorney to file a request to modify the schedules to an amount that you can pay. Of course, the court and trustee must approve it. However, if they're wanting more than you bring home, it's not going to work and you'll be forced into a Chapter 7.
Customer: replied 8 years ago.
i'm sorry   but my question has not been answered    i will restate it   

a couple is married   both work    one files for
chapter 13 the other does not    the attorney uses both incomes to determine how much the filing spouse has to pay    however the amount is more than the filing spouse brings home   
so they are saying the non filing spouse must make up the difference ??? can they make the filing spouse pay back more per month than she/he brings home??
Expert:  Roger replied 8 years ago.
I feel that I've answered your questions in the above commentary, but apparently, I'm not able to get you what you're after. I've opted out to give another expert an opporunity to assist.
Customer: replied 8 years ago.
a married couple   one spouse files for chapter 13 the trustee uses both spouses income to compute the monthly payback to the court   however the amount he determines is more than the filing spouse brings home   so the non filing spouse would have to supplement the monthly payback    is this correct????   or is the monthly payback limited to the total bring home income of the filing spouse???
Expert:  Ellen replied 8 years ago.

Hello,

Thank you for your question. I am happy to assist you.

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.

If this is still not clear, simply post me back.

I hope that the information which I provided was helpful to you.

Best wishes for a successful outcome. If you have additional questions, please do not hesitate to submit them to me directly.

Thank you,

THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE

Customer: replied 8 years ago.
i'm sorry but the this is a yes or no question
can they make the filing spouse pay back more per month than they bring home ????

knowing that the non filing spouse would have to
supplement ????????
Expert:  Ellen replied 8 years ago.
Hello,

'm sorry but the this is a yes or no question
can they make the filing spouse pay back more per month than they bring home ????
Yes.

knowing that the non filing spouse would have to
supplement ???????? Yes.

Thank you,

THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE

Ellen, Attorney
Category: Bankruptcy Law
Satisfied Customers: 36714
Experience: Bankruptcy Lawyer. Experienced.
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