Can you lose Homestead wildcard exemption by moving?

[helpmeout]

Not that this is an option in Florida as that state does not allow the choice between choosing either the federal exemptions or the state's exemptions, but the federal exemptions do allow you to use a portion of the homestead exemption as a wildcard (I believe that it is higher than $4K). If Tennessee allows you to use federal exemptions, it really shouldn't matter when you move, it would just be a question of how long you need to live in Tennessee (or whatever state you move to) to establish residency. A consult with a BK attorney should be able to answer some of your questions regarding moving.

[tobee43]

i do know that for us, we had to have had to establish 2 years of proof of residency prior to our being about to file in flordia, and take advantage of the wildcard exemption.

i very much agree, i would most certainly defer to an atty on the situation. we hired a florida atty, prior to moving here and followed the firms advise. we just were fortunate to go be able to go "underground" and off the radar, grid, and literary hide out those two years enabling and allowing us to afford the opportunity to file in florida. for us, it was a far better choice, i think each person needs to take advantage of what opportunities presents or allows them to do, and, for them to make the best sound business decision for their own personal needs and direction.

[justbroke]

Venue is tricky. For this particular case, it may be in the debtors best interest to file in Florida, before moving. Of course, I'd defer to a Florida bankruptcy attorney that is admitted to practice in the U.S. Bankruptcy Court.

As for Florida exemptions, I believe that you must actually be a Florida resident to use Florida exemptions. Therefore, you'd have to revert to Federal Exemptions if the State in which you are filing requires a residency of more than a mere 6 months, in order to use their exemptions. This is why moving is SUCH an issue with Bankruptcy! I will always defer this type of discussion to an attorney for exactly these reasons!

[tobee43]

jb you do remember correctly about the florida wildcard exemption. it was our sole purpose to get of our nj, a very unfriendly debtor state ( and although nj also allows one to file federally, that was not a bargain either), and move to florida to file. however, we needed to go underground..(LOL!) but true, to establish residency for two full years to be able to claim the wildcard exemption and since we didn't own a home at the time in florida.

also, just a question jb...since and if the OP does in fact move out of state, and since OP would be a resident less than i.e. 6 months, of that state, and filed in their new state, couldn't they still use florida for their filing status?

[justbroke]

You lose your right to a homestead exemption once you are domiciled somewhere else. The key will always be, where are you domiciled? You can determine that by answering "yes" to... a.) do you have a Florida driver's license, b.) are you registered to vote in Florida, c.) where is the majority of your property/business, and/or d.) have you filed a declaration of domicile in Florida?

You can go to college in another State and still be domiciled in Florida. It could get tricky with a driver's license but most college students (18-22) are still domiciled where their parents live.

I would be more worried about the right venue. In any case, you live in Florida and have property in Florida, so your primary assets are in Florida. You would file in Florida for venue. The "unused homestead exemption" is for anyone that is "domiciled" or required to file in Florida, but doesn't get the benefit of the homestead exemption, gets a wildcard in the amount of $4K per debtor (F.S. 222.25(4) if I remember correctly). In other words, you don't need to have "owned" any property. It's in lieu of owning property (or, more technically, receiving the benefit of the unlimited homestead exemption), you get the $4K. So, I would not worry about your home... I'd be more worried about "venue" and "domicile".

[bllyshrs]

I haven’t been able to find an answer to this, so perhaps someone with some experience can chime in. I am filing Ch 7, but it looks like I will have to wait a couple more months to pass the means test. I currently live in a property which is deep underwater, and based on FL exemptions can be surrendered which will give me an additional $4k wildcard exemption for other personal property (mainly vehicle equity, which I need).

However, at the end of the summer I might be moving if I get accepted into college out of state. My original plan would have been to file asap and possibly move in a couple months after my 341. I don’t mind having to come back for my 341 meeting, but I’m concerned that if I leave my residence and move to say Tennessee, suddenly I don’t have a homestead wildcard anymore. I have heard about that happening to others but usually those people got jobs elsewhere or rented out their old place for a year. I know that since I have lived in Florida for several years I get to use Florida exemptions regardless where I file in the next 22 months or so. However, that aside, if I file for Ch7 the day after I move to another state, will I lose my $4k wildcard?

My other concern is that I haven’t been current on the mortgage due to a job loss (hence the BK). I haven’t received a single notice about a foreclosure or sale of property, and FL is notoriously long on foreclosures. But I have no idea what can happen in two months. If i get served with a 20 day notice a week from now, could that thwart my homestead exemption? I really wish I could file right now, but based on the timing of this ridiculous means test (6 months) it makes it look like i’m making too much money today.

Any thoughts?