Why Avoid Bankruptcy?
There was a time when bankruptcy was considered a stigma. Filing for bankruptcy was considered shameful, an admission that one could not manage one's personal finances.
Today, the stigma appears to have lifted. In fact, rampant credit card debt has driven many Americans to choose the bankruptcy route.
What Is Bankruptcy?
Bankruptcy was created to protect the financial health of the jobless and the infirm by eliminating high levels of debt. There are two ways to file for bankruptcy, each with its own rules. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Bankruptcy Reform Act), made many changes in bankruptcy law.
Under a Chapter 7 bankruptcy filing, many debts are eliminated, but the filer must liquidate personal assets to pay down some of the debt. Personal property is sold by a bankruptcy trustee, who then uses the proceeds to pay creditors. Some assets are exempt if they are considered necessary to support the filer and any dependents, but state and federal laws vary widely. In general, a percentage of home equity and disability benefits are exempt, and Chapter 7 filers may be allowed to keep any money or property they obtain after filing. Chapter 7 bankruptcy can be filed once every eight years.
A Chapter 13 filing does not erase debt. Rather, it requires the filer to set up a repayment plan, typically over a three- to five-year period, in exchange for keeping personal assets. The Bankruptcy Reform Act of 2005 states that anyone with income above the state median will have to file for Chapter 13 and pay back at least a portion of their debts. In general, homes will only be protected if owned for at least 40 months. Chapter 13 bankruptcy can only be filed once every two years.
Certain debts cannot be erased under any bankruptcy filing, including alimony, child support, property settlements, criminal judgments and fines, student loans, and most taxes. In addition, a bankruptcy filing will not allow you to keep property that secures a loan, such as an automobile or home, unless you repay the loan.
Who Should File?
|In general, filing for bankruptcy should be avoided. Filing, however, may help to begin a financial recovery if:|
Source: National Institute for Consumer Education
Drawbacks to Bankruptcy
A bankruptcy filing is a black mark on your credit history. This can make it difficult to obtain loans, mortgages, and credit cards. Both a Chapter 7 and a Chapter 13 bankruptcy will appear on your credit report for 10 years. During this time, you may be subject to several financial hardships.
Alternatives to Bankruptcy
Bankruptcy, and the resulting credit difficulties, is not the only way to manage excessive debt. You can try to negotiate a payment plan with a creditor and perhaps reduce your debt. Credit card companies faced with the rising number of bankruptcy filings may prefer to get some of what's owed them rather than have the entire debt erased.
You can conduct these negotiations on your own, with the help of an attorney, or through a professional credit counselor, who specializes in credit negotiations and will charge less than an attorney for the service. Payments for the negotiated debts can be deducted directly from your paycheck by the counseling service, which then distributes the money to creditors. Credit counselors will also work with you to rebuild your credit and improve your long-term financial situation.
Though the stigma surrounding bankruptcy has lifted, it should still be seen as a last resort after all other methods of settling debt have been exhausted. The thought of your debt being erased may be attractive, but the financial hardships bankruptcy can create far outweigh any benefits.
Where to Turn for Help
Consumer Credit Counseling Service (800-388-2227, www.nfcc.org) - This organization has offices nationwide and charges a nominal fee or nothing for its counseling services.
Myvesta US (www.myvesta.org) -- Formerly the Debt Counselors of America, this organization offers a variety of debt reduction materials, including free publications, debt-reduction packages, and credit report information.
The Institute of Consumer Financial Education (619-232-8811, www.financial-education-icfe.org) -- Offers materials to help consumers manage their finances, including the Do-It-Yourself Credit.
File Correction Guide.
Points to Remember
- Chapter 7 bankruptcy erases debt but forces you to liquidate your assets. It can be filed once every eight years and will remain on a credit report for 10 years.
- Chapter 13 bankruptcy allows you to keep your assets in exchange for setting up a repayment plan. An individual can file once every two years and the bankruptcy will appear on a credit report for 10 years.
- Filing for bankruptcy will make loans more costly and may make unsecured loans impossible to obtain.
- Qualified retirement plan assets, such as 401(k)s, are protected under all bankruptcy filings, and assets of up to $1 million in IRAs are also protected.
- An alternative to bankruptcy is negotiating a repayment plan with creditors. For a modest fee, a professional credit counselor can assist you with these negotiations and help you improve your long-term financial health.
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