What Happens When You File for Bankruptcy

If your debts have become unmanageable and you cannot pay them, you might consider declaring bankruptcy for a fresh financial start.

Bankruptcy is a legal process you can use if you are deeply in debt and cannot pay those debts off. It allows you to get relief from some, or even all, of your debts. People, businesses, and entities can all go through bankruptcy. It is usually initiated by a court order at the request of the debtor.

While bankruptcy can help you start fresh, it also has serious consequences that are worth considering. For example, bankruptcy will remain on your credit report for either seven or 10 years, depending on the type of bankruptcy. That can make it difficult to obtain a credit card, car loan, or mortgage in the future.

Learn more about how bankruptcy works about some alternatives to bankruptcy.

What to Do Before Filing for Bankruptcy

You may consider filing for bankruptcy if you are deeply in debt and cannot repay what you owe, are overwhelmed by calls from collections agencies, or are in danger of losing assets like your car or house. Bankruptcy is a legal process that allows you to seek relief. The process usually involves liquidating some or all of your assets to repay your debts, creating a repayment plan, or other forms of debt relief. Some of your creditors will be repaid, others will receive partial repayments, and some may get nothing.

In some cases, this may be the only way to pay off your debts and reset your financial situation. But filing for bankruptcy can have a long-term impact on your personal finances, especially your credit score.

Bankruptcy is generally considered a last resort for people who are deep in debt and see no way to pay their bills. Before filing for bankruptcy, learn about the alternatives. They are less costly than bankruptcy and likely to do less damage to your credit record.

For example, your creditors may be willing to negotiate. Rather than wait for a bankruptcy settlement—and risk getting nothing at all—some creditors will agree to accept reduced payments over a longer period of time.

In the case of a home mortgage, call your loan servicer to see what options may be available to you. Some lenders offer alternatives such as:

• Forbearance: postponing payments for a period of time
• Repayment plans: often smaller payments stretched over a longer period
• Loan modification: programs that offer changes such as lowering your interest rate for the remainder of the loan

Even the Internal Revenue Service (IRS) is often willing to negotiate. If you owe taxes, you may be eligible for an offer in compromise, in which the IRS will agree to accept a lower amount. The IRS also offers payment plans, allowing eligible taxpayers to pay what they owe over time.

Types of Personal Bankruptcy

There are two common forms of bankruptcy for individuals: Chapter 7 and Chapter 13. They differ primarily in how your debts are discharged.

Chapter 7 Bankruptcy

Chapter 7 bankruptcy essentially liquidates your assets in order to pay your creditors. Some assets are exempt, meaning you get to keep them. Exempt assets usually include:

• Part of the equity in your home and automobile
• Personal items
• Clothing
• Tools needed for your employment
• Pensions
• Social Security
• Any other public benefits

Your remaining, non-exempt assets will be sold off by a trustee appointed by the bankruptcy court. The proceeds will then be distributed to your creditors. Non-exempt assets may include:

• Property (other than your primary residence)
• Recreational vehicles
• Boats
• A second car or truck
• Collectibles or other valuable items
• Bank accounts
• Investment accounts

At the end of the process, most of your debts will be discharged and you will no longer be under any obligation to repay them. However, certain debts, like student loans, child support, and taxes, cannot be discharged. Chapter 7 is generally chosen by individuals with lower incomes and few assets. Your eligibility for it is also subject to a means test.

Chapter 13 Bankruptcy

Chapter 13 bankruptcy allows you to retain your assets, but you must agree to repay your debts over a period of three to five years. The trustee collects your payments and distributes them to creditors. Chapter 13 bankruptcy is normally chosen by people who want to keep their non-exempt property intact or buy time against foreclosures or property seizures.

The Means Test for Chapter 7

Whether to file for Chapter 7 or Chapter 13 is not your decision alone. The courts also impose a means test to determine whether you are eligible for Chapter 7.

The means test first compares your average income over the previous six months with the median income for a household of your size in your state. If you earn less than the median, you should be eligible for Chapter 7.

Even if your income is higher than the median, you may be eligible after subtracting certain allowable expenses. But if the calculation shows that you’d have enough disposable income left over to begin repaying your debts—rather than having the slate simply wiped clean—the court may decide that Chapter 13 is your only option. To help determine your eligibility, you will be required to fill out this 122A-2 Form.

How Filing for Bankruptcy Works

Filing for and going through bankruptcy can be a long process with several steps. Knowing what is involved ahead of time can help you prepare.

Consulting an Attorney

If you’ve decided to file for bankruptcy, your first step should be to consult an attorney. While it is possible to file without one, a qualified attorney is often important because bankruptcy has long-term financial and legal outcomes. Your attorney can advise you on which type of bankruptcy is more likely in your situation.

Before you file, you’ll be required to attend a counseling session with a credit counseling organization approved by the Department of Justice’s U.S. Trustee Program. The counselor should evaluate your personal financial situation, describe the alternatives to bankruptcy, and help you devise a budget plan.

Counseling is free if you can’t afford to pay. Otherwise, it should cost about $50, according to the Federal Trade Commission.

Listing Your Debts

In filing for bankruptcy, you will be asked to supply the court with a list of all the money you owe. Your debts fall into two categories:

• Secured debts include loans in which the creditor has a security interest in the property that was provided as collateral when you took out the loan. Mortgages and car loans are the most common types of secured loans, the collateral being your home or your car, respectively.
• Unsecured debts are not backed by property or other collateral. Examples include credit card debt, medical bills, and personal unsecured loans.

The bankruptcy court considers secured debt to be higher priority because failing to pay it can allow the creditor to lay claim to the property serving as collateral.

Once all the essential information has been filed with the court, the court appoints a trustee, whose job is to make sure that your secured debt is repaid over a given period. At that point, the court issues an automatic stay that prevents creditors from seizing the assets through property confiscation or foreclosure.

Discharging Your Debts

When the bankruptcy court issues a discharge, you are relieved of your liability to pay back the listed debts. That means creditors no longer have a legal claim against the debts, so they cannot pursue any collection activity, take any legal action, or even communicate with you in any way.

The court will send your creditors a notice that the debts have been discharged. A copy will also be sent to your lawyer as well as to the U.S. Trustee Program at the Department of Justice. Any creditor who attempts to collect a debt after receiving a notice of discharge can be fined.

For a Chapter 7 bankruptcy, the discharge is usually issued anywhere between four and six months after the bankruptcy petition is filed. The discharge under Chapter 13 bankruptcy is issued after the payment plan is complete, usually three to five years after the bankruptcy filing. 

Rebuilding Your Credit After Bankruptcy

Bankruptcy will remain on your credit report for either seven years (in the case of Chapter 13) or 10 years (in the case of Chapter 7). That can make it difficult to obtain further credit, such as a bank loan or a conventional credit card.

However, the effect of bankruptcy on your credit score will diminish over time, and your score will gradually improve if you show that you’re using credit responsibly.

One tool for doing that is a secured credit card, where you make a deposit with the issuing bank, which then becomes your credit line. By using that card judiciously and making your payments on time, you can begin to establish a fresh credit history. After a period of on-time payments, you may become eligible for a regular, non-secured credit card.

The process of rebuilding your credit and restoring your financial life can take time. But bankruptcy—if you have no other viable choice—can help you start fresh.

The Bottom Line

Bankruptcy is a legal process that allows you discharge many different types of debts, eliminate calls from collections agencies, and begin rebuilding your financial life. The two different types of personal bankruptcy, Chapter 7 and Chapter 13, allow you to discharge your debts either through liquidating your assets or creating a long-term repayment plan.

Before you file for bankruptcy, consider talking to a financial counselor or attorney to explore other options.