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How Pensions Are Handled In a NJ Bankruptcy Case

February 24, 2012 by Robert Manchel

In general, a pension is an asset. However, the question is whether a bankruptcy debtor can fully exempt and keep their pension. The bankruptcy code permits a debtor to exempt and keep their entire pension, if the pension is ERISA (Employee Retirement Income Security Act) qualified. In other words, the pensions must be legitimate under the tax code.
ERISA permits two types of pensions, defined benefit plans and defined contribution plans. The defined benefits plans, promises to pay a retired individual a specific monthly amount based on different factors, such as a percentage of income earned and the years of service of the employee. The defined contribution plans are plans that are funded from the employee and possibly the employers’ contributions over the years of service.
At retirement, the employee is entitled to the available funds that have accumulated from the funds’ investments. The following are examples of defined contribution plans: employee stock ownership; 401(k); 403(b); and, profit-sharing plans. Typically, in a chapter 13 and 7, all of the above referenced plans are fully exempt under the bankruptcy code, with few exceptions. This means that a debtor can keep all of the funds in the plan.
Chapter 7
The other issue pertains to whether a debtor may use as an expense, the monthly payments of the pension plan contribution. Typically, in a chapter 7, a debtor may only use a monthly pension contribution payment as a monthly expense, if the monthly contribution is required. An example is a New Jersey state employee’s monthly pension contribution. However, in general, an employee of a private company is not required to contribute to their pension. Therefore, under this scenario, the monthly contribution is not permitted as a legitimate monthly expense on the petition. Typically, the chapter 7 trustees will allow the debtors to use any monthly pension loan contribution as a legitimate monthly expense.
Chapter 13
Similar to a chapter 7, a chapter 13 debtor is permitted to use any monthly pension loan contribution as a legitimate monthly expense. In a chapter 13, a debtor may use as an expense, a monthly contribution to a pension, even though the contribution is not required by law. However, the monthly contribution must be reasonable.
Please call the Law Offices of Robert Manchel at 1 (866) 503-5655 to get answers to your questions.

Filed Under: Pensions

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      Manchel
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      Bankruptcy Law

      This web site is designed to provide general information regarding the bankruptcy laws. The bankruptcy laws are complex and may be applied differently, in each case, depending on the particular facts. There may be numerous exceptions and variations for each law and rule. Do not rely on the information provided in this web site. If you are considering filing for bankruptcy protection, you should consult with an experienced NJ bankruptcy lawyer. We are a debt relief agency. We Help people file for bankruptcy relief under the bankruptcy code.

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      • Home
      • Chapter 7 & Chapter 13 Info
        • Chapter 7
          • How Does a Chapter 7 Bankruptcy Work
          • NJ Chapter 7 Bankruptcy Process
          • Chapter 7 and Chapter 13 Required Documents and Information
        • Chapter 13
          • How Does a Chapter 13 Bankruptcy Work
          • NJ Chapter 13 Bankruptcy Process
          • Chapter 7 and Chapter 13 Required Documents and Information
        • Chapter 7 and 13 Differences
        • NJ Bankruptcy Info
        • How Bankruptcy Affects You
        • How Bankruptcy Helps
      • Avoid Foreclosure
        • Loan Modification
        • Mortgage Foreclosure Mediation
        • New Jersey State Courts and Procedure
      • About
        • NJ Bankruptcy Attorney Robert Manchel
      • Why Hire Us?
      • Q&A
        • FAQ’s
        • Articles
        • Resource Links
      • Contact Us
        • Office Locations