Filing Bankruptcy, Can You Keep Smoking?

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When you file bankruptcy, whether Chapter 7 or Chapter 13, you have to itemize your monthly living expenses on Schedule J.  The bankruptcy form itself has various categories, food, clothes, utilities, medical care, and so on.  Recreation is one category in which you could put cigarette smoking expense.

Here in the Eastern District of Michigan, the Detroit bankruptcy court, I never list more than $100 per month for one debtor in this category.  It is difficult to justify more than that, in lieu of paying back creditors.

However, a two pack a day habit, if cigarettes cost $8 per pack, is $487 per month, according to the calculator at the health status website.

Ouch!

My friend, California bankruptcy attorney Cathy Moran, has also posted on the topic of cigarette expenses in bankruptcy.

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I have been talking about Schedule J, what I call, “the real numbers.”  There are also the “fake numbers”, in the means test.  Real is what your life costs you now, and going forward.  Fake, is the last six complete months before you filed bankruptcy.  I say fake, because you might have been pulling down good bucks in a great job for five of those months, then been laid off.  But those five good months of income are on that form.

No room for cigarette cost in the fake numbers.

And, on the real numbers, even though bankruptcy is federal law, supposedly the same everywhere, it depends on your judge.

Let me back up the truck.  If you are in Chapter 7 bankruptcy, the United States Trustee, or a creditor, can file a motion to have your case dismissed for “substantial abuse” if it looks like you could pay your creditors something IF you were in Chapter 13 bankruptcy.

No one can be forced into Chapter 13 bankruptcy, that would violate the 13th Amendment to the Constitution, which abolishes involuntary servitude.

But, if you get tossed out of Chapter 7, that usually is your only option to get relief from creditors.

Some judges say, quit smoking and pay up.

Some courts have said, with smoking or other expenses that we can live without, that the Court will not prohibit you from spending that money, but you have to make it up out of your food or clothing, or cutback in some other legitimate living expense category.

My view, (full disclosure, lifetime non-smoker) my clients are in enough stress without forcing them to quit smoking.

It is not like they got addicted to spite their creditors.

Alas, as with many of my sensible opinions, Judges frequently choose another view.

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