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Exemption in CA (community state)

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  • Exemption in CA (community state)

    So here is the question. If my husband has a house that was bought in cash while we were married, that is only in his name and we live in it full time and I am the only one filing for bankruptcy, what is the exemption for it? 75k or 150k?

    Also, what happens with the house that is fully in my name, that I have a mortgage on, that we bought while we were married? I want to let it go with the bankruptcy. Does it effect our exemption on the other house?

    Thank you to anyone that may know how this works!

  • #2
    So much depends and I really don't like speculating when it comes to exemptions. I never want to give someone bad advice where they can actually lose property (money, real property, personal property). Since you are in a community property State, and obtained this property during the marriage, it will be in the bankruptcy estate.

    If there are community debt then those creditors would be part of the bankruptcy as well as personal creditors (creditors of a sole spouse). This is such a complex topic that a California bankruptcy attorney is more qualified to determine what exposure that you have. Since your spouse would not file, they would not have an exemption. This is one of the problems in community property States where one spouse files and the other does not (thinking that they will discharge all community debt, while keeping certain "nondebtor-titled" property and credit.

    It's something that has to be carefully orchestrated and in most cases, from only what I have read here and the problems presented here, both spouses should file a joint petition.

    As for your exemption, it will depend on whether you use System 1 or System 2.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      Oops I forgot to mention that it would be a chapter 7 and my husband cannot file.

      The exemption reads like this...

      Real or personal property you occupy including mobile home, boat, stock cooperative, community apartment, planned development or condo to $75,000 if single and not disabled; $150,000 for families if no other member has a homestead (if only one spouse files, may exempt one-half of amount if home held as community property and all of amount if home held as tenants in common),$175,000 if 65 or older, or physically or mentally disabled; $100,000 if 55 or older, single and earn under $25,000 or married and earn under $35,000 and creditors seek to force the sale of your home; sale proceeds exempt for 6 months after received (husband and wife may not double).

      To me it says that I only get a 75k exemption, I am hoping that I could get the 150k since we are a family living in the house. I may have just gotten an offer on MY house which would pay it off. This way we only have his place now!

      Comment


      • #4
        It clearly reads that you only get the $150 if both are filing OR you hold in a tenancy in common (TIC) -- and probably tenancy by the entireties (TBE). To me it looks like your exemption may only be one-half of $150K as the code clearly reads "if only one spouse files... if home held as community property." I was going to ask you earlier if you held the property in some sort of joint tenancy (the title would read as such... e.g. "Mr. John RazzleDazzle and Mrs. Jane RazzleDazzle, as tenants in common"). How the property is titled will likely matter. The property may also need to be a declared homestead.

        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


        • #5
          Thanks! I always get confused with how legal things are worded. Can you help me decipher this...

          One hundred thousand dollars ($100,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead a member of a family unit, and there is at least one member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor.

          Comment


          • #6
            Depends on the definition of a "family unit." Also, I think you have to read all of that in context with the rest of the code as this is one of three homestead exemptions when read together. “Family unit” is defined as several family living arrangements including the "judgment debtor and the judgment debtor’s spouse if the spouses reside together in the homestead."

            Where do you keep getting different definitions? You may want to look at Nolo's thoughts on this topic. Given that this appears to come from the actual code (704.730) you probably get that exemption at $100K.

            Since this is real money and you could mess this up, I must recommend that you see several California bankruptcy attorneys. The original paragraph that you posted may be old or is an interpretation of the existing law in 704.730. The second paragraph appears to be 704,730(a)(2).

            (Also, you have to declare one of the homes as your homestead and I'm assuming you're going to declare the one that in which you are currently residing with your spouse.)
            Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
            Status: (Auto) Discharged and Closed! 5/10
            Visit My BKForum Blog: justbroke's Blog


            I am not an attorney. Any advice provided is not legal advice.

            Comment

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