Not everyone is qualified to have their debts wiped out (discharged) in a Chapter 7 bankruptcy case. If you’re an individual filing a consumer bankruptcy (as opposed to a business bankruptcy), you must complete and pass the “means test.”
The means test measures whether you have disposable income available to pay back some or all of your debt in a Chapter 13 case, as well the length of time of the Chapter 13 repayment plan (three years if your income is under the median and five years if it’s above). Here’s a primer explaining what is included in the current monthly income and how to calculate it for the bankruptcy means test form.
The means test is part of the packet of official forms that you’ll complete and file with the bankruptcy clerk to start a Chapter 7 case. The test consists of three forms, but you might not need to complete all of them.
On the first form—Chapter 7 Statement of Your Current Monthly Income (Form 122A-1)—you’ll list all gross income that you received during the six full months before your bankruptcy filing date. Then you’ll compare it to the median income for a family of the same size in your state. You’ll pass the test as long as your income doesn’t exceed the state median income. It won’t be necessary to fill out additional forms.
If your income is greater than the family median, you’ll complete the second form—Chapter 7 Means Test Calculation (Form 122A-2). You’ll deduct allowed expenses from your income, such as housing costs, utilities, child care, taxes, insurance, and tithing. The calculations will determine whether you have any disposable income available to pay debt. If you don’t, you’ll pass the test and will qualify to receive a Chapter 7 discharge. Otherwise, you’ll likely have to consider filing for Chapter 13 bankruptcy.
Some people can avoid taking the means test altogether. For instance, disabled veterans, servicemembers engaged in active duty during particular periods, and individuals with primarily business debt (as opposed to consumer debt) are exempt from the means test requirement. You’ll report that your exempt status on the third form.
(For additional information, see The Bankruptcy Means Test.)
For purposes of the means test, your current monthly income (CMI) is the average monthly income you receive from all sources during the full six-month period preceding your filing date. For instance, if you plan to file your bankruptcy paperwork on November 20, 20xx, you’d include all income received starting May 1, 20xx, and continuing through October 31, 20xx.
To get your CMI, add up the total income you received from all sources during the six-month look-back period, and then divide by six to come up with your average monthly income. If the income is from wages, use the gross amount. If you don’t pass the first portion of the means test, you’ll be able to deduct your income tax—and other expenses—when completing the second form.
You must include all of your income, whether it is taxed or not, except the following:
Here are some examples of income that should be included (this list is not exhaustive):
If you are employed and get a regular paycheck in the same amount each pay period, it will probably be easy to calculate your CMI.
But calculating your CMI isn’t always straightforward. Here are some examples.
Courts employ various interpretations of what is included in the definition of CMI. If your income situation is less than regular, it may be advantageous to consult with a local bankruptcy attorney who knows the views of your local bankruptcy trustee and court. A good bankruptcy attorney may also be able to advocate for an interpretation of CMI that is advantageous to your situation.