When it comes to filing for bankruptcy, several different options are available, depending on the filer’s financial situation and types of debt owed. Two of the most common forms of consumer bankruptcy filings are Chapter 7 and Chapter 13.
Chapter 7 is a liquidation bankruptcy that wipes out most of your general unsecured debts such as credit cards and medical bills without the need to pay back balances through a repayment plan.
The fear of losing everything is a very real fear for many bankruptcy filers. However, this is one of the most common bankruptcy myths, and can keep individuals who are drowning financially from filing for bankruptcy. One concern many filers have is whether they will be able to keep their mode of transportation after filing for bankruptcy.
The good news is most filers will be able to keep their vehicles after filing for bankruptcy. Florida bankruptcy laws offer generous exemptions which allow individuals to keep various types of property, including their vehicle. Under the Florida Motor Vehicle Exemption, bankruptcy filers can exempt up to $1,000 in motor vehicle equity. This amount can be even more if a married couple is filing for bankruptcy jointly.
When someone is facing the possibility of bankruptcy, the thought of losing his or her home is a very real and frightening one. However, the protections of the bankruptcy automatic stay can help the filer protect his or her home through a Chapter 7 or Chapter 13 filing. The key to this protection rests heavily on the type of bankruptcy filing and the filer’s financial situation. The bankruptcy automatic stay also offers filers who are facing a multitude of collection calls relief from their creditors, protect them from lawsuits, wage garnishment, repossession, and losing valuable property.
As soon as the bankruptcy petition is filed, the automatic stay goes into effect. After this point, creditors and debt collectors are legally barred from attempting to collect on any debt owed by the filer.
When someone is facing a difficult financial situation, it can be tempting to pull money from whatever resources are readily available. Many consumers feel they have no choice but to dip into their retirement savings to pay for financial emergencies or unexpected expenses. In fact, according to a recent study published by Magnify Money, more than half of all Americans have withdrawn money from their retirement savings early.
Twenty-three percent of those surveyed stated that they did so to pay off debt. Another 17 percent used this money to put a down payment on a home, while 11 percent used the money to pay for education costs. Nine percent surveyed reported using money from their retirement savings to pay down medical debt.
When filing for bankruptcy, a common concern individuals have is how bankruptcy will affect their assets. If you are filing for Chapter 7 bankruptcy in Florida, you can use Florida bankruptcy exemptions to protect your property. In addition, residents are provided unlimited exemptions for homestead, annuities, and the cash surrender value of a life insurance policy.
Florida has one of the most generous homestead exemptions in the country. To use these exemptions, you must have resided in Florida for at least 730 days before filing your bankruptcy petition. To claim the full value of the homestead exemption in Florida, you must have owned the property for at least 1,215 days before the bankruptcy filing.
Many people are misled to believe that bankruptcy can only make problems worse by causing them to lose their home, vehicle or their ability to ever take out credit, again. This could not be further from the truth.
In fact, those filing for Chapter 7 or Chapter 13 can keep almost everything. Depending on your specific case, Florida bankruptcy laws allow you to keep the following:
Type of Bankruptcy Filed
One deciding factor lies in what type of bankruptcy is being filed. Under a Chapter 7 bankruptcy case, the filer turns over assets that are not otherwise protected under Florida’s bankruptcy exemptions to the court where they are liquidated and used to pay off that person’s creditors. Depending on what falls under Florida bankruptcy exemptions, if the filer has a great deal of assets, this bankruptcy may not be ideal. With a Chapter 13 bankruptcy, the filer’s assets are not liquidated. Instead, an affordable repayment plan is prepared by the court allowing the consumer to pay down his or her debts over three to five years.
Bank Accounts
In a Chapter 7 bankruptcy case, the average filer’s bank accounts are not affected. The exceptions to this, include:
The protections of the bankruptcy automatic stay, which go into effect immediately upon filing for bankruptcy halt any collection activity, garnishment, and lawsuits against you.
401(k) Accounts
If the filer has money in a 401(k) account through his or her employer, this money is considered safe for the most part. Under Florida bankruptcy law, a filer’s retirement accounts are protected so long as the 401(k) plan is qualified under the Employee Retirement Income Security Act (ERISA). Under 11 U.S.C. Section 522; Fla. Stat. Ann. § 222.21, ERISA qualified retirement plans are fully exempt, including 401(k)’s, 403(b)’s, profit sharing and money purchase plans. However, make sure the account is ERISA protected before making any assumptions.
Traditional or Roth IRA Plans
If the filer has an IRA, including a Roth IRA, this type of plan is treated differently than a 401(k) that is ERISA protected, meaning these accounts are more vulnerable in a Chapter 7 bankruptcy case. Further, any funds that are withdrawn from a retirement account are not considered protected in a Chapter 7 bankruptcy case and are considered fair game for creditors.
Other Retirement or Pension Benefits
Other financial accounts are protected under Florida bankruptcy law, including public employee retirement benefits, municipal police pensions, and firefighter pensions. Teacher retirement pensions, as well as state and county retirement benefits, are similarly protected under Florida bankruptcy exemptions.
Annuity Income
If the filer receives money through an annuity, the rules are a little different. If the annuity was funded through an ERISA-protected IRA or other qualifying account, the filer should be able to exempt up to $1,362,800 of its value, up until 2022 when it is subject to change. If the annuity is also tied to a condition of illness, disability or length of service, the money from the annuity may also be exempt. Because annuities tend to be a little more complicated, it is recommended you consult with a bankruptcy attorney regarding protecting annuity funds.
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If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
Related Resource: https://www.nolo.com/legal-encyclopedia/florida-bankruptcy-exemptions-property-assets-bankruptcy.html
There are two types of bankruptcy available to consumers who are struggling with debt- Chapter 7 and Chapter 13 bankruptcy. Choosing the right one is critical to success in eliminating your debt. Below is a comparison guide to help you best decide which bankruptcy is right for you.
Chapter 7 is a form of liquidation and it is often considered the most straightforward type of bankruptcy. Consumers are essentially given a financial fresh start, oftentimes within three months of filing.
Contrary to the bankruptcy myths surrounding Chapter 7, it does not mean you will lose your home, car or retirement savings. In most Chapter 7 cases, filers do not have assets above the legal threshold, which is set by state law and therefore they do not have to lose anything- only their debt. If a person is filing for Chapter 7 bankruptcy in Florida, they can use Florida’s bankruptcy exemptions to protect valuable property.
Chapter 13 restructures your debt into an affordable repayment plan. The debtor’s obligations are combined into one monthly payment to the bankruptcy trustee, which is then distributed to the creditors. Chapter 13 takes into account your income and expenses, the amount of your debt, the types of debt, and even your property value when setting the repayment plan. If you are behind on your mortgage payments, Chapter 13 allows you to get caught up on these payments and save your home from foreclosure.
Chapter 13 plans can last anywhere from three to five years, but most are five-year plans.
If you are struggling to keep up with your Chapter 13 payments, or have recently lost your job or become ill, Chapter 13 may no longer be the right option for you. You can convert a Chapter 13 bankruptcy to a Chapter 7 bankruptcy at any time if you become eligible. Many of our clients are surprised to discover they never have to go to court or see a judge in order to convert their Chapter 13 filing to a Chapter 7.
If you have any questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
It is a common concern of parents filing for bankruptcy. In this blog, we will address common bankruptcy concerns involving children, including: What happens to children’s bank accounts and 529 educational savings accounts in bankruptcy? Will I be able to take out student loans for my child after filing for bankruptcy? Will my child lose property? What happens to child support obligations in bankruptcy?
Your Child’s Property
Technically, any property in your home is yours and not your child’s. This includes your child’s furniture, toys and clothing, even though they may have been gifted directly to the child. If the child paid for a piece of property from his or her own money and this fact can be proven, the property is the child’s exclusively.
The good news is this property is an expemption, allowing it to be protected in the bankruptcy. If the filer is proceeding with a Chapter 13 bankruptcy case, the bankruptcy filer will get to keep all personal property. In a Chapter 7 bankruptcy case, the filer can keep up to $1,000 in personal property under Florida’s bankruptcy exemptions, which includes household furnishings and clothing. If the amount exceeds the $1,000 limit, the bankruptcy trustee will normally not look to sell this property to pay off debts unless the property is extremely valuable.
Bank Accounts
Many parents open up bank accounts and hold them in trust for their children. The good news is these accounts are protected in bankruptcy. Under the Uniform Gifts to Minors Act, money in a child’s bank account is not considered your money, meaning you, as the parent, are holding this money in trust for your child. Therefore, neither the bankruptcy trustee nor the creditors will be able to access this money. However, filers should be cautious when transferring large amount of money into the child’s account right before filing for bankruptcy.
529 College Accounts
Many parents also put money away into education savings accounts under section 529 of the Internal Revenue Code (IRC) to help give their children a head start in saving for college. This section of the IRC also offers tax advantages, as well as creditor protection, which is another reason why so many parents take advantage of it. The federal bankruptcy code specifically excludes 529 funds from being lumped as part of the bankruptcy estate. However, for this money to be protected, the beneficiary must be the filer’s child, stepchild, grandchild or step-grandchild. Also, the court will look at the timing of when deposits were made into the account. Deposits that are made within 365 days before filing for bankruptcy are not protected. If a deposit is made anywhere between 365 and 720 days before filing for bankruptcy, the filer can exempt up to $6,225 per beneficiary. Anything that was deposited more than 720 days before filing for bankruptcy is exempt and protected from bankruptcy creditors.
Financial Aid
Another piece of good news is the fact that filing for bankruptcy will not hurt your child’s ability to qualify for financial aid for college, including Pell Grants and Stafford Loans. The parent, however, will be disqualified from receiving any credit-based financial aid, including a Parental Loan for Undergraduate Students (PLUS) loan if the parent declared bankruptcy within the past five years. If that does happen, the filer’s child will qualify for an increased amount of unsubsidized Stafford loans.
Child Support Payments
One important fact to know about child support and bankruptcy is that child support obligations are non-dischargeable in a bankruptcy case. Therefore, if the filer owes a large amount in back child support, this debt is considered priority debt and is paid first from the liquidated assets in a bankruptcy case. Child support payments must also be paid during a Chapter 13 bankruptcy repayment plan. In fact, a bankruptcy court will not grant a discharge in a Chapter 13 case if the person is not current on his or her post-filing child support payments. Child support income is also protected in a bankruptcy case, if the filer is the parent receiving the child support, since that money is meant for the support and well-being of the child.
If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
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According to a new report released by Merrill Lynch and Age Wave, one in four consumers under the age of 34 have made the decision to take money out of their retirement accounts to try and get out of debt. Of the reasons reported for why these individuals took money out of their retirement accounts was to pay down student loan debt or credit card debt.
This is a critical mistake and one that comes with a 10 percent tax penalty, not to mention more long-term consequences. Since any money that goes into a 401(k) account is from pre-tax dollars, the IRS taxes money taken from a 401(k) at a higher rate than normal income.
Not only will a person be paying a higher amount in taxes on money taken from a 401(k), but they will also be jeopardizing their retirement and borrowing against their future wealth. The goal of retiring can seem far off for millennials, but the earlier you plan and save for retirement the better.
The fact that younger consumers feel they have no choice but to reach into their retirement savings comes as no surprise, especially considering the fact that many of these individuals carry a significant amount of credit card and student loan debt. This is before some of them even apply for their first job.
It is estimated that Americans hold a total of $1.6 trillion in student loan debt. The average undergraduate student graduates with approximately $37,000 in student loan debt, according to the Merrill Lynch study. On top of that, these individuals also are carrying an average of $3,700 credit card debt. However, despite this fact, financial experts do not advise using retirement savings to pay off debt.
It is important that consumers be aware of the fact that money in 401(k) accounts is protected in bankruptcy. In fact, social security, 401(k)’s and pensions worth up to $1.245 million are all exempt from creditors during bankruptcy. This means that retirement income and savings are out of reach and protected under federal law. A Chapter 7 bankruptcy allows you to hold onto all of your retirement savings and keep every penny of your 401(k).
However, this is only the case if the money remains in your 401(k) retirement account. Removing funds from the 401(k) or any retirement account before filing for bankruptcy turns the funds from a protected asset to an unprotected asset.
If the amount of debt you are struggling to pay is so unmanageable that you are considering filing for bankruptcy, it is important to remember that retirement savings are protected under Florida’s bankruptcy exemptions. It is important to speak with an attorney, especially if you have recently lost your job and have considered pulling from your retirement savings to help pay for day-to-day living expenses.
If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
Related Resource:
https://www.cbsnews.com/news/one-in-four-millennials-with-401ks-are-raiding-retirement-savings-early-to-pay-down-debt/
One of the most important assets someone going through a bankruptcy case wants to protect, aside from retirement accounts or their home, are their bank accounts. After all, no one wants to lose all the cash they have available to pay for daily expenses. How money in a bank account can be protected depends heavily, however, on the type of bankruptcy exemptions used and what planning was done pre-bankruptcy to protect that money.
One of the benefits of filing for bankruptcy involves the automatic stay, a measure that goes into effect as soon as the bankruptcy case is filed. This automatic stay puts a halt to any collection proceedings or efforts, giving the filer reprieve from the continuous calls and communications from creditors seeking to receive payment on their debts.
Are the Funds Exempt?
In any bankruptcy case, certain property is protected from being liquidated and used to pay off qualifying debts. This practice is done through bankruptcy exemptions. In a Chapter 7 bankruptcy case, the bankruptcy trustee cannot take this exempt property to pay off debts. While the bank account itself is not necessarily exempt, the money in that account could be protected if it qualifies under one of Florida’s bankruptcy exemptions. After all, Florida has quite generous bankruptcy exemptions, when compared to other states.
If you own a home, you will likely find Florida’s bankruptcy exemptions quite favorable. You can exempt all the equity in a residential property that meets Florida’s guidelines. In addition, Florida has unlimited exemptions for annuities and the cash surrender value of a life insurance policy.
Money in the account that is from wages from the head of family is exempt up to $750 per week or the greater of 75 percent or 30 times the federal minimum wage. Under Florida Statute §222.11, this money includes paid or unpaid wages during the last six months. Additionally, any money that is income for a person other than the head of family is also protected up to 75 percent or 30 times the federal minimum wage, whichever is the greatest of the two. Additionally, if you are a federal government employee, pension payments that are needed for support and were received for up to three months before the bankruptcy filing are exempt.
Pre-Bankruptcy Planning
If any funds are not otherwise covered by a bankruptcy exemption, they could be protected through pre-bankruptcy planning. However, this planning must be done with caution and properly so a bankruptcy attorney should be consulted before any actions are taken. Bankruptcy laws allow you to take property that would not be exempt and convert it into exempt property, so long as you are acting in “good faith.” The key here is to act in good faith. Bankruptcy filers who conceal or hide their assets in hopes of fooling the bankruptcy court, will result in the case being thrown out due to bankruptcy fraud. It is for this reason that you should proceed with caution when doing any pre-bankruptcy planning.
One possible method of converting nonexempt cash into an exempt asset before filing is to pay your mortgage down, especially considering Florida’s generous homestead exemption. You may also make an annual contribution to your retirement account or other retirement funds with any nonexempt cash to ensure that it goes to an asset that is protected. Money can also be used to pay down debts that would not be discharged in bankruptcy, including child support, spousal support, taxes, and student loan debt. Ensure your balance is low by using your funds to pay necessary bills before you file.
If you use any money that would be nonexempt to buy assets that would be considered luxury items or unnecessary or extravagant expenses, you could face civil and criminal penalties for your actions. The bankruptcy court will look carefully at whether you misrepresented your asset values, whether the investment or property purchased was worth less than the money you used to purchase it, whether the assets were given to a family member or friend with whom you have a close relationship, and whether your lifestyle radically changed as a result of the purchase.
When filing for bankruptcy, you will be required to disclose all asset transfers made outside of the ordinary course of business within 90 days before filing the petition. Any transfers made to a friend or relative within one year of filing must also be disclosed.
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If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
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Debt presents a problem for many Americans today, but one generation clearly stands out among the rest in terms of holding the most consumer debt. In fact, according to a recent study published by LightStream Survey conducted by the Harris Poll, nearly 80 percent of all members in the Generation X, ranging from ages 36 to 51, have some level of debt. The report showed that eight in ten members in this age category carry debt.
Coming in just below this were members of the Millennial generation, consumers between the ages of 20 and 35. Approximately 75 percent of all members in this age group carried debt. The next group was the Baby Boomer generation, which includes individuals between the ages of 52 and 70, with 69 percent of them carrying some type of debt.
While all three of these generations carry debt, it is the mindset of those in the Gen X category that presents the most cause for concern. Those surveyed in Gen X reported that they felt it was impossible to pay off a significant debt once it was incurred. Additionally, 25 percent of those in this demographic reported that they were not confident in how they were handling their finances. However, in the survey data, these individuals did state that they would be willing to give up hobbies or extracurricular activities to get rid of their debt payments, which does show some promise.
On average, individuals in Generation X carry $30,334 in “non-mortgage debt.” In comparison, Baby Boomers hold $27,513 and Millennials hold $22,784 in non-mortgage debt.
Getting out of debt can also be problematic for individuals in this generation, as well. Those who are younger may be able to use their savings or cash in their investments to reduce their debt, but it may be too difficult for Gen X members to dip into their retirement savings to pay off debt.
If you are struggling with insurmountable debt, dipping into retirement savings is never advisable. These are protected in bankruptcy along with the following bankruptcy exemptions in Florida. Many individuals are already struggling to pay for obligations, including helping aging parents as well as adult children. While they are not quite at the age of retirement, they are approaching that point, making it too close for comfort to use retirement savings.
Continuing to struggle with debt is a slower, less effective way to pay it off. Many different debt relief options exist, including debt consolidation, debt settlement or negotiation and bankruptcy – but it is important that as a consumer you research your options carefully.
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If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
