Residency-when does it start?

[daylate]

I'm considering moving to a new state and figure it will be easier to guarantee attendance at the 341 if I file there, rather than file here, move and then not be able to get back for the hearing-I will rent an apartment, say Nov 1, but won't be able to get drivers license for a week or so. Will residency start Nov 1?
I will have a house in another state which I'm walking from.

[SMinGA]

If you start the lease on 11-1, you'd count that as beginning of your residency. Research how long you must reside in the new state... When you consult attorneys discuss the matter since they must be experience enough to file in current state when you're using another state's exemptions.

[tcreegan]

residency

Hello daylate,

I am pretty sure this is right....

You file the case in the court where you currently live (so you can make it to the 341 among other things).

You use the exemptions of the state where you lived in the 6 months before 2 yrs ago.

So if you file 9/2010, then your residency for BK purposes is where you lived from April-August 2008

Except (you didn't think it would be that easy did you?)

If your old state doesn't allow you to use their exemptions unless you actually live in that state, you use federal exemptions in your new state.

If you move to a state that allows federal exemptions (AK, CT, D.C., HI, Mass., Mich., MN, NJ, NM, PA, RI, SC, TX, VT, WA, and Wisc.) you can use the federal exemptions if you file you BK after the first 90 days.

Why do you care? The federal govt. and individual states allow you to exempt certain property in the BK, some states have exemptions better than the federal ones, and some states have exemptions worse than the federal exemptions. Some states are a LOT better, some states are a LOT worse than the federal exemptions.

Clear as mud, I know, I know....but post the old state, new state, home value, mortgage owed, and time you moved. then we can get you a good solid answer.

Tom in Colo
Tom in Colo

ps: be careful, a lot of lawyers don't know the residency requirements for Ch 7 changed with the new BK laW IN 2005 If they tell you it is the 180 days before filing for residency, they are using the old rules.

[keepmine]

You file where. you spent the greater part of the previous 180 days. So, you'll need to be a resident of your new state for at least 91 days prior to filing. You will need to be a resident of that state for 2 years to use that states exemptions.

[despritfreya]

"Keepmine" is correct but you do no have to be a "resident" of that State. You needed to have been domiciled or had a residence or principal assets located in the jurisdiction for the better part of 180 days prior to filing and, as pointed out, you must use the prior State's exemptions if you have not been "domiciled" in your current State for at least 2 years.

[daylate]

Thanks all. But, Tom in Colo-unfortunately Texas does not allow you the choice of using the fed options-I was all excited about finding this option in the NOLO book and then disappointed after being told by several attorneys there that the courts have ruled if you aren't a 2 year resident, then you have to use the exemptions allowed in old state-unfortunately my old state doesn't allow choice of Fed.

[tcreegan]

[daylate]

Moving from a state with crappy exemptions. Can still file in Tx after 91 days but have to use old state exemptions.

And yes Texas does still allow choice for 730 day residents

[despritfreya]

[tcreegan]

Residency

Hi despritfreya,

Thanks for the clarification!

Since you are here, is this correct?

If you move to a state that allows federal exemptions (AK, CT, D.C., HI, Mass., Mich., MN, NJ, NM, PA, RI, SC, TX, VT, WA, and Wisc.) you can use the federal exemptions if you file your BK after the first 90 days.

Thanks for your help,

Tom in Colo

[despritfreya]

In response to:

"Is this correct?

If you move to a state that allows federal exemptions (AK, CT, D.C., HI, Mass., Mich., MN, NJ, NM, PA, RI, SC, TX, VT, WA, and Wisc.) you can use the federal exemptions if you file your BK after the first 90 days."

No, you must use the exemptions allowed (federal or state) from the state you moved out of unless you have been domiciled in the new state for 2 years. The 180 day rule just permits you to file the case in the new state. It does not dictate what exemptions you use.

[tcreegan]

residency clarification

Thanks again despiritfeya !! I got that from a lawyer's website but I didn't give it a strict enough 'smell test' Should have known it was fishy!

Tom in Colo

[ryan]

...so you must be in the new state for 180 days before you can file, period. Right?

[despritfreya]

...so you must be in the new state for 180 days before you can file, period. Right?

No. You must be in the state for the better part of 180 days which is 91 days.

[ryan]

...so you must be in the new state for 180 days before you can file, period. Right?

No. You must be in the state for the better part of 180 days which is 91 days.

Finally I get it! :-) must be my thick head! Thanks