Florida increases personal property exemption

[DivorceRuinedMe]

http://www.bankruptcyorlando.com/2007/05/florida_increas.html#more

I plan on bringing this to my attorney's attention and arguing for the tenancy by the entirety instead of the homestead exemption to get the $4000 personal prop. exemption. I have a house right now that is my homestead that my husband and I purchased before we were married. He is NOT filing with me. So, we'll see if the court will allow me to claim the tenancy instead of homestead and gives me the $4000. Who knows, others may argue for this before I even get to file. This could actually save my engagement ring so keep your fingers crossed for me.

[juststupid]

I hope it works out and you get to keep your engagement ring.

[keepmine]

An excellent post. Here are 2 more Fl. decisions that are very recent involvinmg T BY E issues.


In re Schwarz,(Bankr. SD Fla. Olson

The January 30, 2007 case of In re Schwarz, (Bankr. SD Fla. Olson) held certain real property as exempt from administration in the estate under 11 USC 522 (b)(3)(B) which allows for the exemption of any interest in property which the debtor held as tenants by the entireties to the extent that it is exempt from process under applicable non-bankruptcy law.

In this case, the debtor was unable to exempt his real property under the Florida homestead provision of Art. X Section 4 (a)(1) of the Florida Constitution as the new provisions of BAPCPA of 11 USC 522 (b)(3) required the debtor to use the Maryland exemptions as the debtor had not been a domiciliary of Florida for the entire 730 day period prior to filing of the bankruptcy case. The parties agreed that Maryland does not provide for a specific homestead exemption. Nonetheless, the debtor was able to exempt his entire interest in the real property in Florida as he held it as tenants by the entireties on the date of filing pursuant to section 522 (b)(3)(B).

It is significant that the Court looked to Florida tenants by the entireties law as the "applicable non-bankruptcy law" for such determination and not Maryland law.

Property held by a debtor in a tenancy by the entireties is exempt from the claims of individual creditors in bankruptcy under Florida common law with certain exceptions for joint creditors or fraudulent conveyances. In this case, there were no joint creditors nor any indication of a fraudulent conveyance.

Interestingly enough, section 522 (b)(3)(B) does not require the debtor to be residing in the property on the date of filing, but only requires that the debtor hold an interest in the property as a tenant by the entireties immediately before the commencement of the case. In this case, the debtor did not move into the property until after the filing of the case but held an interest in the property as a tenant by the entireties before the commencement of the case.

In Buonopane B.R M.D.Fla, 2007

Judge Williamson of the Middle District of Florida issued his decision in the case of In Buonopane B.R M.D.Fla, 2007 On January 26, 2007 in which he held that the cap imposed by BAPCPA on the state homestead exemption that a debtor can claim in residential property acquired within 1,215 days of the petition date applied only to the Florida homestead exemption that the debtor could claim under 522(b)(3)(A) and not to the separate entireties exemption available under section 522(b)(3)(B). Section 522(b)(3)(B) provides for the exemption of property held as a tenant by the entireties. This decision is in accord with Judge Olson's recent decision in the Southern District of Florida in the case of In re Schwarz of the S.D. Fla.).The Court stated while its ruling would appear to provide a way for a debtor to "end run" the $125,000 cap contained in section 522(p), that its ruling is consistent with the legislative history of section 522(p)(1) which was directed to close the "mansion loophole" and not against a state's common law on tenancy by the entireties..

All of the case law on "tenanct by the entireties" include inherently to only ONE maried debotor filing "married but not filing solo."

This strategy is worthless if both spouses have substantial unsecured debt in both names.

[DivorceRuinedMe]

and thankfully - my husband and I only have debt in my name! I so hope this works out for me!

[keepmine]

For some reason, this topic intrigues me. I guess I just love seeing the underdog get over "on the man"!

Anyway, I've been doing some research here and there and I think there are 24 T BY E states. This is just a huge advantage to filers in these states where one spuse owes the lions share of the debt.
T BY E states are {I think}:

Tenancy by the entireties for husband and wife is allowed in Alaska, Arkansas, Delaware, Florida, Hawaii, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Vermont, Virginia, Wyoming, and the District of Columbia