There are different requirements for filing, depending on the bankruptcy chapter you are filing under.
Chapter 7
Any individual residing, domiciled or having property or a place of business in the United States may file a Chapter 7 bankruptcy. The individual need not be insolvent, and no other test must be met (however, in limited circumstances a Chapter 7 case may be dismissed by the court for “substantial abuse”).
Although a debtor may file on his or her own behalf, an individual generally may not file a bankruptcy case as trustee on behalf of some other person. This may cause occasional problems in cases in which parents have title to liened property in trust for their children. However, the child may be able to file. A legally incompetent person may be qualified to file under the Code. In that case, a guardian may be appointed by a court, or an attorney may be able to file the petition as “next friend” to the debtor.
One limitation exists on the broad right to file under Chapter 7. An individual is not eligible to file a case if, within the preceding 180 days, (1) he or she was the debtor in a bankruptcy case dismissed for willful failure to abide by orders of the court or to appear before the court in proper prosecution of the case or (2) he or she requested and obtained voluntary dismissal of a bankruptcy case following the filing of a creditor’s request for relief from the automatic stay.
Simply failing to make payments of filing fees or payments under a prior confirmed Chapter 13 plan should not, by itself, preclude a successive filing for 180 days. Nor should failure to appear at the meeting of creditors in a prior case, by itself, be grounds for dismissal of a subsequent filing. A new petition may even be proper while a prior petition is still pending, if the only reason that the prior case is pending in the court’s inefficiency in closing it.
Chapter 11
Any business or individual eligible for filing a Chapter 7 bankruptcy may file for Chapter 11; however, it is generally not the best option for individuals.
Chapter 13
Chapter 13 is available to “individual[s] with regular income” who reside, are domiciled or have property or a place of business in the United States. An incompetent person may be eligible to file a bankruptcy case, including a case under Chapter 13. To be an “individual with regular income,” one must be “any individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under Chapter 13.”
This definition was clearly intended to encompass not only wage earners, but also recipients of government benefits, alimony or support payments, or any other regular type of income. The question of how regular the income must be is left to the courts, but because such types of income as commissions are meant to be included, it is clear that the debtor need not receive payments at particular or rigid intervals. A spouse or other living partner of a person with regular income, who has no independent source of income, may be able to file a petition without the other spouse or partner. The definition focuses on whether the debtor will have funds available for a plan. Thus, if a person can show a regular allowance from a living partner for expenses, he or she should be eligible for Chapter 13. An unemployed spouse may clearly file jointly with the other spouse.
Besides regular income, a second limitation on eligibility for Chapter 13 is the amount of debt. Although the limits do not pose problems for most consumer debtors, Chapter 13 is not available to debtors (or debtor couples) with more than $290,525 of noncontingent, liquidated, unsecured debts or more than $871,550 of noncontingent, liquidated, secured debts. As in Chapter 7, though, the debtor need not be insolvent.