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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 38877
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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A husband and wife filing a joint bankruptcy are separated

Resolved Question:

A husband and wife filing a joint bankruptcy are separated and living in different states, are listing exempt property that is in both of their names, chose to use state exemptions, and the exempt property is in the husband's state. Must the couple use the exemptions of the husband's state, or can they chose the exemptions in the wife's state, or can they each apply the exemptions of their state to their part of the property?
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 6 years ago.

This issue is determined by state law, because bankruptcy law defers to state law exemptions concerning property rights (except in jurisdictions where the federal exemptions apply and are elected by the debtors). So, there is no "one size fits all" answer.

More than likely, your specific circumstances have never been litigated before, because of the variety of jurisdictional possibilities. As an example, in California, the homestead is only permitted where the debtor actually resides in the home on the date of filing of the bankruptcy petition. However, if the debtor's former spouse resides in the house at the filing date, the debtor spouse can still use the exemption, while legally separated.

Hope this helps.

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