13 Apr Six Months of Paycheck Stubs: Is It Really a Requirement?
You may have heard that you need to provide your lawyer with six months of paycheck stubs (advices of payment) if you want to file a bankruptcy case. While most persons will end up doing so, the actual legal requirement is not that stringent.
The bankruptcy law requires, in section 521(a)(1)(B)(iv), that you file with the court copies of any paycheck stubs you have received in the sixty days preceding the filing of the case. Obviously, if you received no paycheck stubs because you were not working, or are retired, or possibly for some other reason, then the requirement does not apply to you. Instead, some federal court districts require that if you do not file sixty days of paycheck stubs, you must file an affidavit explaining why you have not received any during this time period.
The reason for the requirement of six months of paycheck stubs is instead based on section 101(10A), which requires that consumer bankruptcy debtors calculate their monthly income, for “means test” purposes, based on a monthly average of all income they have received in the six months prior to filing the case. To do this properly, your lawyer will need to see copies of all the paycheck stubs you have received during that time period.
However, just as the sixty day rule referred to above does not apply to persons who have not received paycheck stubs during that time period, the six month rule may be similarly inapplicable. If you were not employed, or are retired, or for some other reason did not receive paycheck stubs during the six months prior to filing bankruptcy, you will not need to produce them as a precondition to filing bankruptcy. Instead, your lawyer will need you to prepare a record of the income, if any, that you received during the preceding six months, including the dates you received it and the nature or source of the income: social security, pension, unemployment benefits, child support, alimony, financial assistance from other persons, lottery winnings, gifts, even income from “cash jobs” (you can worry about the IRS later).
Of course, some persons filing bankruptcy may need to give their lawyer both six months of paycheck stubs and a record of other income received, in order to comply with section 101(10A)’s requirement that all income be taken into account.
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