Cash is the hardest thing to protect in a California bankruptcy, because there is no arguing about what it is worth. Your bank balance at the moment of filing, wages you have earned but not yet been paid, and the tax refund you have not received are all assets of the estate.
Most of this is solved by picking the right filing date. Some of it is solved by the wildcard. A little of it is not solved at all, and you should hear that before you pay anyone.
The snapshot rule
Bankruptcy takes a photograph of your finances at the exact moment the petition is filed. Money in the account at 9:59 a.m. is an asset. Money you spent on rent at 9:58 a.m. is not. Filing the day after payday when $4,200 just landed is a different case than filing three days later after the rent clears.
Outstanding checks are the trap here. If you wrote a $1,900 rent check that has not cleared, your bank shows a low balance but the estate looks at the balance in the account, and a check that has not been presented has not left. We look at the ledger, not the app.
Wages you have earned but not been paid
Under System 1, section 704.070 protects 75 percent of earnings paid to you within 30 days before filing, and gives similar treatment to unpaid earnings. The other 25 percent is exposed. Under System 2 there is no separate wage exemption at all, so unpaid wages ride on the wildcard, which usually swallows them without difficulty.
If you are paid on the 15th and the 30th and you file on the 28th, you have roughly two weeks of earned but unpaid wages sitting in the estate. It is a real number and it belongs on the schedules.
Tax refunds are the biggest one and nobody expects it
A refund is money you already overpaid during the year, so it is an asset you own before the check arrives. A family with two children claiming credits can be looking at $6,000 or more. Filing in October means roughly three quarters of next spring's refund is estate property. Filing in March, after you have received and spent the refund on ordinary expenses, means there is nothing to take.
Social Security and public benefits
Social Security, SSI, unemployment, disability and most public benefits are protected, and Social Security is protected by federal law independent of California's statutes. But the protection is far easier to prove when the money sits in its own account, direct deposited, never mixed with wages.
Commingling is the failure point. If your benefits land in the same account as your paycheck and your spouse's paycheck, you now have a tracing problem, and tracing arguments are expensive to win and easy to lose. If you are on benefits and thinking about filing, open a separate account now and let the deposits sit there for a couple of months.
“I ask everyone the same slightly rude question at the consultation: what is in every account right now, including the one you forgot about, including Venmo and Cash App and the credit union account from your first job. Those balances have cost my clients more money than any other category of thing they did not mention.”
Naomi Reyes-AshfordWhat you may spend money on before filing
- Rent, mortgage, utilities, groceries, insurance, medical care and car repairs
- The attorney fee and the court filing fee themselves
- Necessary clothing, school costs and household repairs you have been putting off
- Catching up a car payment or a tax bill that would survive the discharge anyway
What you may not do is repay your mother the $8,000 you borrowed. Payments to insiders within one year before filing are preferences, and the trustee can and does sue your mother to get that money back into the estate. Paying an ordinary creditor more than a threshold amount within 90 days creates the same issue with less family drama.
Questions we get asked
Can the trustee take money from my bank account after I file?
The trustee can demand turnover of non-exempt funds that were in the account on the filing date. Money you earn and deposit after filing in a Chapter 7 is yours, which is one of the cleanest lines in the whole statute.
What if my paycheck is already being garnished?
Filing stops the garnishment immediately, and money garnished within 90 days before filing can sometimes be recovered if it exceeds a threshold. Bring the garnishment notice and the pay stubs showing what was taken.
Do I have to give up my whole tax refund?
Not usually. The wildcard covers a typical refund in System 2. Where it gets tight is a large refund plus a large bank balance plus a paid-off car, all competing for the same pool.
Is my spouse's income at risk if only I file?
In California, community property generally comes into the estate even when only one spouse files, which surprises people badly. A one spouse filing does not put a wall around the other spouse's wages the way it would in most states.
Pull the last 60 days of statements for every account you hold, including the ones with small balances, and bring them to the consultation. Filing date strategy is built off those statements and almost nothing else.