Can I Legally Borrow From a 401(k) While Under Chapter 13?

by Pamela Gardapee, Demand Media

    Under normal circumstances, you can borrow from your 401(k) plan and repay the loan through automated deductions from your payroll check. However, when you are in a Chapter 13 bankruptcy, you cannot legally borrow from your 401(k) without repercussions, unless you have permission from the federal bankruptcy court trustee.

    Chapter 13 Bankruptcy

    Chapter 13 bankruptcy is different from a Chapter 7 bankruptcy. When you file for a Chapter 13 bankruptcy in federal court, you agree to a repayment plan that allows you to pay your creditors in full or at a determined percentage of monies owed. A trustee handles the repayment plan, which can last from three to four years depending on your debt amount, assets and income. Your 401(k) is an asset that is protected from the Chapter 13 bankruptcy in many cases.

    401(k) Fund

    The 401(k) fund is a retirement fund in which you, as an employee, direct a certain percentage of your income into the fund. In many cases, the employer also contributes a certain percentage to your 401(k) fund. When you have an automated 401(k) deduction from your payroll check, the money is deducted before your income is taxed. Not only is the money building a retirement fund, it is also lowering your tax liability.

    Protected 401(k)

    Your 401(k) fund is protected from bankruptcy for amounts up to $1 million in many states. This means that although you must disclose the total amount of money in your fund, if the total is under $1 million, the courts do not require you to withdraw funds or take a 401(k) loan out to pay for your debt.

    Borrowing Money

    During the Chapter 13 bankruptcy repayment plan, you are not allowed to take out a loan or incur any additional debt. This means that you cannot borrow from your 401(k), apply for a credit card or take a loan out with a private financial company. If you borrow money from your 401(k) and the federal bankruptcy court finds out, that money could be considered income that you have to pay towards your debt. Any loan or credit you obtain can cause a default on the Chapter 13 bankruptcy.

    Getting Permission

    If you are intent on borrowing money from your 401(k) fund, you must discuss the loan with your attorney. The attorney will discuss the matter with the trustee in charge of your Chapter 13 bankruptcy. The decision to allow you to borrow money from your 401(k) fund is at the discretion of the trustee and the bankruptcy courts. The request is rarely granted.

    About the Author

    Pamela Gardapee is a writer with more than seven years experience writing Web content. Being functional in finances, home projects and computers has allowed Gardapee to give her readers valuable information. She studied accounting, computers and writing before offering her tax, computer and writing services to others.