When you file for bankruptcy in South Florida you must list all or your assets and all of your debts on your bankruptcy petition. The petition is the paperwork that actually gets filed with the court, and it also includes the list of all your creditors(debts), your income and your expenses. Any retirement account such as a 401k, an IRA or a pension plan is considered an asset so you must list it.
Furthermore you need to protect these assets, from your creditors, by exempting them on your bankruptcy schedules. Exemptions prevent the court from taking your assets and using the monies from them to pay off your creditors. Under Florida law you can usually exempt any monies you have in a 401k, IRA or a pension savings plan. However there are some circumstances that will not all you to exempt your entire 401k or IRA plan.
The main example of where you entire 401k may not be protected is the following:
You have $10,000 in the bank (non exempted or partially exempted) and $1,000 in your 401k (fully exempted) . Right before you file for bankruptcy you move the money in your bank account (non-exempted) into your 401k (exempted) in hopes of exempting the whole amount. This would be considered a fraudulent transfer.
If you have a 401k or a retirement plan and you are considering filing for bankruptcy then please contact Shmucher law to schedule a free consultation. We offer consultations in offices throughout South Florida, including Boca Raton, Fort Lauderdale, Miami, Plantation, and Sunrise Florida.