Cite as: Keith M. Lundin, Lundin On Chapter 13, § 95.22, at ¶ ____, LundinOnChapter13.com (last visited __________).
For a Chapter 13 debtor with current monthly income (CMI) greater than applicable median family income,1 “amounts reasonably necessary to be expended—”2 are determined in accordance with § 707(b)(2)(A) and (B).3 Among the 10 classes of monthly expenses that are allowed by § 707(b)(2)(A)(ii)(I) is the following:
In addition, the debtor’s monthly expenses shall include the debtor’s reasonably necessary expenses incurred to maintain the safety of the debtor and the family of the debtor from family violence as identified under section 309 of the Family Violence Prevention and Services Act, or other applicable Federal law. The expenses included in the debtor’s monthly expenses described in the preceding sentence shall be kept confidential by the court.4
This addition to the debtor’s monthly expenses includes only “reasonably necessary” expenses incurred—for family safety. Use of “incurred” could be interpreted in this context to mean “actual expenses.” But it is at least odd that the sentence uses “incurred” rather than “actual expenses” allowed by other sentences and subclauses of § 707(b)(2)(A)(ii).
This addition to allowable monthly expenses only applies to expenses incurred to maintain the safety of the debtor and the family of the debtor from “family violence as identified under section 309 of the Family Violence Prevention and Services Act, or other applicable Federal law.” The Family Violence Prevention and Services Act is actually Title III of the Child Abuse amendments of 1984.5 Section 309 of the Child Abuse Amendments of 1984 defined family violence as follows:
The term “family violence” means any act or threatened act of violence, including any forceful detention of an individual, which—
(A) results or threatens to result in physical injury; and
(B) is committed by a person against another individual (including an elderly person) to whom such person is or was related by blood or marriage or otherwise legally related or with whom such person is or was lawfully residing.6
The reference to “other applicable Federal law” is breathtakingly broad. A quick computer search reveals many other federal statutes that contain the words “family violence,” and most use or refer to the same definition.7
Chapter 13 debtors that have been forced to deal with family violence have a broad range of expenses that would be includable in monthly expenses. There may be expenses for maintaining a separate household such as moving expenses, a burglar alarm, separate rent and other costs of escaping from family violence. There may be attorney’s fees for seeking protective orders or injunctions. There could be expenses for a cell phone or the costs of changing jobs to get away from family violence. There may be medical expenses if the debtor or any member of the debtor’s family is a victim of family violence. The ongoing costs of psychological or psychiatric care for the debtor or for a family member would be included.
Because the monthly expense deduction for family violence expenses is in clause (ii) of § 707(b)(2)(A), family violence expenses may collide with the prohibition that monthly expenses “shall not include any payments for debts.”8 A Chapter 13 debtor struggling to pay the debts that resulted from family violence will test the boundaries of the exclusion of payments for debts. If the debtor incurred $3,000 before the petition to put a burglar alarm in the home to protect the family from family violence, the cost of that alarm certainly looks like an allowable family violence expense deduction. On the other hand, that alarm and almost any expense “incurred” by the debtor before the petition will be a “debt” for bankruptcy purposes that could run afoul of the prohibition against including “payments for debts” in any expense claimed under clause (ii) of § 707(b)(2)(A).9 Once again, this illustrates the impossibility of applying literally the words in § 707(b)(2)(A)(ii). If the word “incurred” is interpreted to mean expenses of the debtor before the petition, all such expenses will be “debts” and the entire monthly expense deduction for family violence expenses is rendered meaningless. The prohibition on including “payments for debts” can’t be read so broadly without nullifying the monthly expense deduction for family violence expenses.
It is perhaps understandable that the forms drafters were reluctant to note at Line 41 that expenses incurred to protect the debtor’s family from violence may not be included in monthly expenses at Line 41 when those expenses are “payments for debt.” But the forms drafters exuberantly included such legends throughout Official Form B22C, just not at Line 41.
It is revealing that Line 41 of Official Form B22C—the place where debtors are supposed to record additional expense deductions for protection against family violence—contains no legend or instruction requiring exclusion of payments listed elsewhere in the Official Form. A debtor with a secured debt for the burglar alarm is not warned by the form to exclude that debt from the family violence expenses.
But curiously the instructions at Line 41 are not accurate of the family violence expenses described in § 707(b)(2)(A)(ii)(I). The instructions state “enter any average monthly expenses that you actually incurred to maintain the safety of your family under the Family Violence Prevention and Services Act or other applicable federal law.”10 The forms drafters added the word “actually” to the statutory word “incurred,” and the instructions suggest that the expenses must be incurred under the Family Violence Prevention and Services Act or other applicable federal law. The statute actually reads that the expenses must be incurred to maintain the safety of the debtor and the family of the debtor from “family violence” as identified under § 309 of the Family Violence Prevention and Services Act. Section 707(b)(2)(A)(ii)(I) would not limit the deduction to expenses arising under the named statute or other applicable federal law.
The confidentiality mandate in the statute is not reflected in Official Form B22C. The statute requires that family violence expenses “included in the debtor’s monthly expenses” shall be “kept confidential by the court.” Perhaps what the statute means is that the debtor can enter a monthly expense amount at Line 41 of Official Form B22C but need not reveal the “expenses included” in that amount. On the other hand, putting any amount at Line 41 of Official Form B22C signals that the debtor or a member of the debtor’s family has been a victim of family violence. That fact itself may be subject to the confidentiality required by the statute.
A debtor sensitive about this confidentiality issue should consider completing Official Form B22C in a way that does not reveal an answer to Line 41 or, perhaps, filing the completed form under seal. These confidentiality issues should have been addressed at Line 41 or somewhere in Official Form B22C.
Notice that this monthly expense includes expenses to maintain the safety of the “family of the debtor” from family violence. This would include expenses incurred by a debtor to maintain the safety of the debtor’s spouse even if the debtor’s spouse is not a joint debtor.11
The statute is not clear and the form contributes nothing to the meaning of “monthly expenses” in the context of family violence. “Monthly expenses” could mean recurring expenses, or the statute could mean an average of expenses incurred (past tense) by the debtor. The forms drafters describe this as “average monthly expenses that you actually incurred to maintain the safety of your family.” This is one interpretation but not the only possible reasonable interpretation of the statute. A debtor with ongoing expenses such as attorney’s fees, medical expenses, monthly security alarm charges and the like should consider including those continuing charges as well as an average of expenses incurred before the petition. If an average of monthly expenses is used, the statute is silent about what months or years or amounts to use in that average.
1 See 11 U.S.C. § 1325(b)(3), discussed in § 469.1 [ Comparison of CMI to Applicable Median Family Income: § 1325(b)(3) ] § 92.4 Household Size and Comparison of CMI to Median Family Income: § 1325(b)(3)
2 See 11 U.S.C. § 1325(b)(2) and (3), discussed in § 467.1 [ Projected Disposable Income: All Debtors ] § 92.2 Projected Disposable Income: All Debtors.
3 11 U.S.C. § 1325(b)(3), discussed in § 471.1 [ Big Picture: Too Many Issues ] § 94.1 Big Picture: Too Many Issues.
4 11 U.S.C. § 707(b)(2)(A)(ii)(I).
5 See Pub. L. No. 98-457, § 301, 98 Stat. 1749 (1984) (now found at Chapter 110 of Title 42).
6 Pub. L. No. 98-457, § 309, 98 Stat. 1749 (1984), codified at 42 U.S.C. § 10421.
7 See, e.g., Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. § 3202.
8 See 11 U.S.C. § 707(b)(2)(A)(ii)(I), discussed in §§ 472.1 [ Netting Issues, Including Exclusion of Payments for Debts ] § 94.2 Netting Issues, Including Exclusion of Payments for Debts and 479.1 [ Family Violence Expenses ] § 95.22 Family Violence Expenses.
9 See § 472.1 [ Netting Issues, Including Exclusion of Payments for Debts ] § 94.2 Netting Issues, Including Exclusion of Payments for Debts for further discussion of this issue.
10 Line 41, Official Form B22C, discussed in § 380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation.
11 See § 473.1 [ Accounting for Spouses ] § 94.3 Accounting for Spouses for further discussion of accounting for a spouse’s expenses.