I am wondering how the fact that my kids aren't always with me will affect my means test. I need to be a household of 4 to qualify.
So long as they are with you part time, you can claim them on the means test.
If this is a concern, then you should really hire an attorney who is local to assist you.
Unfortunately, there is not a simple answer to this question. What constitutes a "dependant" can be a complicated analysis. If you claim the children as dependants on your taxes, pay their expenses, and included any child support income on your means test, you have a chance. I'd recommend that you consult with one or more local attorneys to get a clear idea of where you stand in light of all the facts - hiring a good attorney could save you a good deal of hassle and expense later on.
This is general information, based on limited facts, and does not constitute legal advice or the forming of an attorney-client relationship. If you want legal advice for your particular situation, you should contact a local attorney who can counsel you regarding your particular situation. Mr. Waddell is a bankruptcy attorney who helps people file bankruptcy and is designated as a debt relief agent under federal law.
If you put both of the other two atty answers together you have a great answer and it should be helpful but mostly you need a consultation with a bkcy atty.
The information provided herein is not, nor is it intended to be, legal advice. It is for informational purposes only. No attorney-client relationship has been created and we have no obligations to you or your case.
What I do in these circumstances is out in schedule j "son 50%" for all 3 and round up since the means test doesn't allow fractions. That would give you a total household size of 3 (3/2 +1) and allow you to deduct court ordered child support of some exists.
If you were my client I'd probably take the 3 kids as dependents/household members. However, I would need to know more. If you're paying child support, the UST's office will generally object to you taking a child support deduction and claiming the kids for household size. If you're receiving support, remember that's included in your income. On close case, the trustee/UST's office will look at your whole situation (especially expenses on Schedule J) before deciding whether or not to make an issue out of something.
If you're close on the means test, please get an experienced bankruptcy attorney to assist you. It can easily be the difference between success and failure.
If your "household size" is an issue as to whether there is a presumption of abuse on the means test I recommend you consult with a local attorney. Make sure they understand the means test (not all bk attorneys do). The term "household" is not defined in the bankruptcy code and there is no controlling 9th circuit case law defining the term. The courts have used at least three methods to determine household size: 1) heads on the bed, 2) dependents (as defined by IRS), and 3) economic unit. If your local judge(s) and trustee(s) favor one method a local attorney should know. Here in the Seattle area we have several judges and no clear standard on how to determine household.
If it is a matter of whether you are merely above or below the median income for a household of your size you probably don't have a problem. Most people who are slightly above the median income still pass the means test. However, if it is an issue of whether there is a "presumption of abuse" then you need a competent, capable, attorney. Regardless of what the issue is, I believe that there are very few debtors who should proceed without the assistance of an attorney. Good luck.
Agreeing with most of the answers here, in that they are probably a dependent. However, adding official information, the official United States Trustee position on the issue is, basically, if you can claim the individual as a "dependent," then they are a "member of your household."
In you're case, they're a member of the household. Trustee's not going to ask for particulars on the status of each kid. Trustee doesn't care about the kids. Just cares if he/she can get money out of you.
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