Expert: Mark J. Markus- California Bankruptcy Attorney - 8/30/2009

Question
My husband and I reside in California.  My husband was recently laid off and we have 94K in credit card debt and have a condo currently upside down and recently put on the market as a short sale.  We would like to file Chapter 7, however do not pass the means test due to our income being over the limit in the last 6 months.  My husband is in the National Guard and is thinking about becoming active duty.  Will this exempt us from the means test or does the debt have to be incurred while on active duty?  Thank you for any assistance.

Answer
Please see the excerpted section below.  If he meets the requirements stated therein, then he is exempt from the means test for that period of time.  However, YOU would NOT be exempt and would have to complete a means test form for yourself.  


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Members of a reserve component of the Armed
Forces and members of the National Guard who were called to active duty (as defined in 10 U.S.C. § 101(d)(1)) after September 11,
2001, for a period of at least 90 days, or who have performed homeland defense activity (as defined in 32 U.S.C. § 901(1)) for a period of
at least 90 days, are excluded from all forms of means testing <u>during the time of active duty or homeland defense activity and for 540
days thereafter (the "exclusion period")</u>. If you qualify for this temporary exclusion, (1) check the appropriate boxes and complete any
required information in the Declaration of Reservists and National Guard Members below, (2) check the box for "The presumption is
temporarily inapplicable" at the top of this statement, and (3) complete the verification in Part VIII. During your exclusion period you
are not required to complete the balance of this form, but you must complete the form no later than 14 days after the date on
which your exclusion period ends, unless the time for filing a motion raising the means test presumption expires in your case
before your exclusion period ends.