Expert: Mark J. Markus- California Bankruptcy Attorney - 4/8/2009

Question
QUESTION: I am receiving max SDI, two private DI policies for two years, and will get SSDI in July, which will lower my private DI payments. I have not worked for 18 months. Are SDI and SSDI included in my means testing? Im told my SDI payments are putting me over the threshold keeping me from filing for BK.

ANSWER: Only social security disability/income is excluded from the means test income calculation.  Everything else is included, if received in the 6 calendar months prior to filing your case.

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QUESTION: Confirming, State Disability is not considered "Social Disability Insurance"? It appears my creditors will take my Disability Benefits for two years until they run out, leaving me destitute by the time I can file. It appears my insurance will only benefit my creditors, not me or my family. Are there any special considerations for those people permanently disabled?

Answer
Special circumstances is something you or your attorney can argue if the means test shows a presumption of abuse, but as far as the means test goes, you can only exclude income received as part of the Social Security Act, which includes SSDI, but not State or private disability, unless somehow your state's disability program was set up under the Social Security Act.