You don’t need an attorney when filing individual bankruptcy, and filing on your own or "pro se" (the term for representing yourself) is feasible if the case is simple enough. But most people benefit from representation. In this article, learn:
The general rule is the simpler your bankruptcy, the better your chances are to complete it and receive a bankruptcy discharge—the order erasing debt—on your own. Your case is likely simple enough to handle without an attorney if:
However, keep in mind that even the most straightforward Chapter 7 requires you to fill out extensive paperwork, gather financial documentation, research bankruptcy, and exemption laws, and follow the local rules and procedures. At the very least, if you want to file pro se, use a good self-help bankruptcy book like Nolo's How to File for Chapter 7 Bankruptcy, by Attorney Cara O'Neill and Albin Renauer, J.D.
It is almost always a good idea to hire an attorney to represent you in bankruptcy. Here are two situations that always call for representation.
Filers don't have an automatic right to dismiss a Chapter 7 case. If you make a mistake, you risk having your case thrown out, your assets being taken and sold, or facing a lawsuit in your bankruptcy case to determine that certain debts shouldn't be discharged. So if you own a small business, have income above the median level of your state, have a significant amount of assets, have priority debts, or have creditors who can make claims against you based on fraud, you'll likely want a lawyer.
What Is a Priority Debt?
Bankruptcy is an excellent tool that helps many people overwhelmed with debt get back on their feet. But it might not discharge (get rid of) everything that you owe. Priority debts get paid first if money is available to pay creditors. More importantly, they’re nondischargeable—they don’t go away in bankruptcy. (Learn about the differences between dischargeable and nondischargeable debt.)
Debts that you’ll remain responsible for include (many, but not all of these debts are priority in nature):
- child support, spousal support, or another domestic support obligation
- fines, penalties, and restitution imposed as punishment for violating the law
- some taxes
- intoxicated driving debts
- homeowners’ association dues assessed after filing for bankruptcy
- retirement plan loans
- money borrowed to pay off nondischargeable tax debt (for instance, the credit card debt incurred after using your account to pay a tax bill), and
- debts determined nondischargeable in a previous bankruptcy.
A student loan won’t get wiped out either unless you can prove to the court that it would be a hardship to make you pay it. Most people are unable to meet the standard, however. It can be costly to file and litigate the lawsuit necessary to prove the case, as well.
Additionally, any creditor can file a nondischargeability complaint asking the court to determine that a debt shouldn’t be discharged in your case. To win, the creditor will need to prove that one of a variety of situations exists.
- You committed fraud (for instance, you wrote a bad check or lied about your income on a credit application).
- You charged a luxury item less than 90 days before you filed for bankruptcy.
- You intentionally harmed someone or damaged their property.
- You embezzled funds or stole money.
- You failed to list all creditors in your bankruptcy petition.
If you suspect that you might have nondischargeable debts, or that a creditor might file a lawsuit against you, it’s probably not a good idea to represent yourself.
There are many reasons to file a Chapter 13 bankruptcy instead of Chapter 7. You might want to file a Chapter 13 bankruptcy because you wish to catch up on mortgage arrears, get rid of your second mortgage, cram down (reduce) your car loans, or pay back nondischargeable priority debts, such as back taxes or support arrears. Or maybe you make too much money to qualify for a Chapter 7 bankruptcy. No matter your reason, most Chapter 13 cases are too difficult to file on your own.
In addition to filling out the bankruptcy forms (and perhaps some local forms), you must also design a proposed repayment plan, which is very difficult to do without the expensive software that most attorneys use. Specific actions such as stripping your second mortgage or cramming down a car loan will require filing additional bankruptcy motions and paperwork with the court.
As a result, some attorneys limit their bankruptcy practice to Chapter 7 because they feel they are not qualified to handle Chapter 13. And, an overwhelming majority of Chapter 13 cases filed without an attorney get dismissed by the court. So if you are planning to file a Chapter 13, it is a good idea to hire a qualified attorney.
Even if you have a simple Chapter 7 case, bankruptcy can be an intimidating and time-consuming process. You will need to accurately fill out many forms, research the law, and attend hearings. If you understand bankruptcy law but would like help completing the forms—the average bankruptcy petition is approximately 50 pages in length—you might consider hiring a bankruptcy petition preparer.
A bankruptcy petition preparer is any person or business, other than a lawyer or someone who works for a lawyer, that charges a fee to prepare bankruptcy documents. Under your direction and control, the bankruptcy petition preparer generates bankruptcy forms for you to file either by typing them or inputting information into a bankruptcy software program.
Because bankruptcy petition preparers are not attorneys, they can't provide legal advice or represent you in bankruptcy court. Specifically, they can't:
In essence, you must understand what debts your bankruptcy will discharge, what will happen to your property in the bankruptcy, and what laws should be used to exempt your property from being taken for the benefit of your creditors.
Also, you must file the bankruptcy papers yourself and represent yourself in court. In other words, you are responsible for your case. You act as your attorney and use the bankruptcy petition preparer as a typing service that transposes the information you give them onto the official forms.
A good bankruptcy petition preparer will have up-to-date bankruptcy computer software that will generate the documents quickly and relatively easily. And most bankruptcy petition preparers charge low fees, especially compared to lawyers.
Bankruptcy law requires bankruptcy petition preparers to follow these business practices:
People who help others for free are not subject to these rules.
If you are not comfortable with any aspect of the bankruptcy process, you should consider hiring an attorney who will prepare the forms, attend the hearings with you, and guide you through the process.