The Nonfiling Spouse and the Means Test’s Marital Adjustment

27 Mar The Nonfiling Spouse and the Means Test’s Marital Adjustment

The shocking realization is that your spouse might have to contribute to your Means Test – required payments even if you file alone. You aren’t happy about this at all. “But they’re my debts. Why should my husband or wife have to contribute?” Because that’s the law. Your income includes all regular contributions to the household expenses of yourself and your dependents, including those fromyour marital partner.

The Marital Adjustmentis how we get to deduct your spouse’s separate expenses from your income. They must truly be separate, like accurate payroll withholdings. But it’s not enough to say that the s/he has separate credit card charges. For example, a charge for food, clothes, furniture, or even gasoline or car repairs could be a regular contribution to the household expenses of yourself or your dependents.

How about separate mortgage payments by your spouse for a home you live in but don’t own? OUCH !! Courts are giving us different decisions, even if in they are inthe same state (although different districts). CompareIn re Trimarchi, 421 B.R. 914 (Bankr. N.D. Ill. 2010) (is part of the debtor’s income) with In re Clemons, 2009 Bankr. LEXIS 1959 (Bankr. C.D. Ill 2009) (deducted separate expense).

An angry husband or wife might simply refuse to cooperate, but you cannot file your bankruptcy case without the that income and expense information. The information must be accurate, of course, because the Means Test form is signed under penalties of perjury. Documents must be provided or there’s no Marital Adjustment deduction. See In re Dugan, 2008 Bankr. LEXIS 2813 (Bankr. D. Kan. 2008).

Are you ready to subpoena your angry partner? I hope that yourspouse, instead,will see the benefit to your entire family of you getting out of debt.

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L. Jed Berliner practices exclusively in consumer bankruptcy, foreclosure defense, and related consumer protection litigation such as credit card defenses and suing debt collectors. He established his Springfield, MA practice in 1988. Attorney Berliner is a regular and active contributor to the Bankruptcy Law Network, the Bankruptcy Roundtable, and the National Association of Consumer Bankruptcy Attorneys, three specialized consumer bankruptcy forums on the Internet, and is an informal mentor to regional practitioners. He is recognized by his peers as an expert in consumer bankruptcy issues. He thoroughly enjoys being rated "excellent" in his client surveys.

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