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Our Chapter 13 Payment is Too Much For Us to Handle. Help! – Melanie

“Dear Lewis,

Currently in a chapter 13 bankruptcy. (will be 3 years in Aug.).

I was working 2 jobs at the time of filing, my husband 1 job. We have a son age 17 a daughter age 22. They both live with us..daughter claimed her own dependent status last year on taxes..if full time student..the trustee raised our payment since we did not claim our daughter. (we did not want trustee to get her income tax return).

We are currently in a Chapter 13 bankruptcy. (almost 3 years now). I recently quit my second job. The trustee went to court to up our payment. The court awarded in her favor. Our 401 K loan just got paid off so the trustee now gets that repayment money and more money each pay from us. (total monthly payment=$2800.00) this payment is killing us and straining our marriage. We are now behind on our monthly household bills we pay and no extra left over between bills! Should we drop Chapter 13…file for divorce and try to convert to Chapter 7? What will happen on each option?

Thanks!

Melanie”

Dear Melanie,

Don’t you have a chapter 13 attorney? If so, you really need to speak to your attorney.

I am not sure I have enough information to understand why the payment went up when your income went down. I understand the trustee would recoup the 401K loan repayment once it stopped.

But did you or your attorney file anything with the court explaining there is also less income?

As to converting to chapter 7, I don’t know if that is possible. Qualifying for chapter 7 depends on household income and expenses. Without knowing your household income, household size, expenses, and any unexempt assets (and where you live), there is no way to determine your qualification for chapter 7 – it requires a full consultation.

As to the divorce, are you doing this in an attempt to qualify for chapter 7, or because of the difficulties in the marriage? Just filing divorce doesn’t necessarily mean that one of you or both of you qualify for chapter 7.

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And if you do divorce, and have a current attorney in the chapter 13, the state’s ethics rules might require your attorney to withdraw from your bankruptcy case.

My name is Lewis Roberts and I’m an attorney licensed in Florida and Georgia. My practice focus is consumer bankruptcy, real estate issues/closings, and mortgages. I also have Florida real estate broker and mortgage broker licenses. I am a proud member of the National Association of Consumer Bankruptcy Attorneys (NACBA), National Association of Consumer Attorneys (NACA), and a graduate of Max Gardner’s Bankruptcy Boot Camp. I enjoy helping people with decisions that impact their financial well-being.

Legal Disclaimer: This is for educational purposes only. It is not to be relied upon as legal advice. It also does not create an attorney-client relationship. No such relationship is formed with attorney without a written agreement.

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About the author

Lewis Roberts

Florida Consumer Protection Attorney

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