Question re: Domicile vs. Residency and State Law

[Q007]

Hello,

I am legally married although have lived physically separated from my spouse for the past three years. He is active duty military and our home of record, or domicile, is a common law property state (Florida) -- our cars are titled and registered there.

He is assigned to duty in a community property state. I have just moved to a separate community property state (Nevada). I cannot file here until after 91 days of residency but at that time I'm still outside of the window to file using Nevada's exemptions (that would be triggered at six months of residency). So, instead I would file using the exemption scheme of my domicile state (the common law state -- Florida).

Does anybody know if the lens through which I should/could interpret a Chapter 7 bankruptcy is the Florida law in its entirety (the common law interpretation of property/assets/debts), or am I only to use the exemption scheme from Florida and the rest of the filing should reflect Nevada's community property perspective (spousal liability for debts, assets, etc)?

We do not have, nor ever had, joint debts (credit cards, loans, etc) or assets (property, bank accounts, etc). We do not have children. He does file our taxes as "married filing jointly" but he keeps the tax refund (with my approval). He receives a housing allowance from the military for being married and he gives me a portion of it each month ($600.00). These are the only two "joint" activities that we have engaged in. In Florida there is no "legal separation" so I do not have any legal document showing that we are separated although I can prove through rental history that I have lived on my own for the past three years (we've been married for four).

I am $40k+ in credit card debt. I own my car -- a 2003 model with 262,000 miles on it, wear and tear and some body damage, rear seats missing. I rent a small studio apartment. I do not have any savings accounts or retirement accounts. I am unemployed, in trauma counseling for a sexual assault that has rendered me reclusive. I'm on the mend but used my credit cards and loans from family to exist for the past two years. I'm finally able to process the specifics of my reality, the mess I've made of my life, and am using this clarity to discern how best to fix it.

Chapter 7 would be a fresh start for me and he will be supportive of my decision but I hope not to have to entangle him in this process.

I will schedule some free consults with attorneys but ultimately I would need to file pro se as I cannot afford attorney's fees.

I'm sorry that this is such a convoluted tale. No doubt I made it more complicated than it has to be. Any ideas out there?

[Drazil65]

Hi and welcome, everyone has a story and you have yours. You for sure need to speak to bankruptcy attorneys about your situation but and at some point a divorce attorney I would guess. You guys are clearly no longer married especially since you moved out of the home and into a home for one situation. But I guess deal with one issue at a time. Getting that fresh start is a wonderful thing but you need to be in the right frame of mind to do so as well. If you have no job now and live on credit then how do you live after the chapter 7?

You probably know you need to get a job, health insurance etc or the fresh start will not exist. You will continue down the same path and just start the credit card and loan thing all over again. Do you have any plans to seek employment at this time? Can you maybe get something to start you off and perhaps a room mate? Is anyone living in the home your husband and you had at this time if he is deployed? You have many decision to make and many things to adjust, no easy fixes here but you clearly need to start somewhere. Good Luck!

[Q007]

Thank you, Drazil, for your reply.

I provided too much of my story -- I apologize.

It's the first time I've put it all together in an attempt to present it outside of my own ruminations, but that level of detail is to burden an attorney with -- not an internet forum where people are offering their time and information from their own kindness.

I have a tendency to want to know what's around corners, every corner, even if I never get to the corner. So I examine the tiniest details of the entire map and worry over contingency plans for every potential route. It makes me feel safer but certainly that's not a practical or healthy way to exist in the real world.

I will take my questions to an attorney. If I hear anything that might be of interest to others as it pertains to the bigger picture issue of domicile vs. residency and court venue/jurisdiction, I will come back here and post it.

[LadyInTheRed]

There is nothing wrong with providing details here. The more details you give, the more likely we can help. The problem is that marital property issues can be complicated. The fact that you live in different states makes it even more difficult. You do need to talk to an attorney to get definitive answers to your questions, regardless of any information you receive here.

If you both moved to the same state, how your property is treated would be determined by the laws of the state where you live. Some community property states have quasi community property which means that if you acquired property while in another state that would have been community property if you live in your current state, then your current state treats that property as community property. In other CP states, the same property would be separate property if it was separate property when you acquired it. The fact that you live in separate states and have not filed for legal separation or divorce makes things more complicated. I have no idea how it works when you live in separate states.

Where your husband is stationed does not determine his state of domicile unless he plans to stay there permanently.

If you file BK in NV, using FL exemptions, FL law will effect only your exemptions. Everything else will be determined by Federal Bankruptcy laws and the laws of the state where you live.

Attorneys very well may advise you to divorce before you file for BK.

[Q007]

Thank you, Lady In The Red, for your reply. I really appreciate the time and effort you spend with forum members. It's truly comforting.

Your answer is what I was expecting but, of course, I was hoping for something different. :-)

After I've met with an attorney I will check back in here with specifics. Beyond the original question, I also need to sort out issues pertaining to personal loans between family members, tax implications, etc. So, perhaps the bright side of my tangled web, once sorted out, will be some more helpful information for this forum which is already such a beacon of light.

Thanks again.