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An Introduction to Bankruptcy Exemptions
Figuring out which bankruptcy exemptions to use and how to use them is one of the most challenging parts of filing for bankruptcy. It’s difficult because bankruptcy law is a confusing mixture of federal and state law. Although the US Constitution gives the federal government the power to pass laws about bankruptcy, the federal government also gave each state long ago the authority to choose which properties a debtor can keep when he or she files for bankruptcy. The laws protecting these properties from creditors and the bankruptcy trustees are called exemptions.
When you file for bankruptcy, the property you own at that point (and sometimes shortly after that), is part of what is called your bankruptcy estate. Federal law determines what is included in your bankruptcy estate. Every state’s exemptions automatically include these. For example, 11 U.S.C. §541 excludes certain educational funds-monies you’ve put in an educational retirement account or a qualified state tuition program for the benefit of your child or grandchild-from your bankruptcy estate. To qualify the funds must have been deposited more than a year before you filed for bankruptcy. Funds deposited into plans more than one year but less than two years before the bankruptcy filing are excluded to the amount of $5,000.
Property that is included in your bankruptcy estate under federal law can be taken and sold to pay your creditors, unless it is exempt.
A Choice Between State and Federal Law Exemptions
Some states have created their own set of exemptions that replace the federal list entirely, while others offer a choice to the debtor of using federal or state depending on his or her circumstances. California offers residents a choice between two sets of exemptions, but both come under California state law.
States where you have the choice of using either the federal exemptions or the state exemptions (you never get to use both at the same time) are: Arkansas, Connecticut, District of Columbia, Hawaii, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Washington, and Wisconsin.
Federal exemptions differ from state exemptions and state exemptions vary from jurisdiction to jurisdiction. For instance, the maximum exemption for a car in Florida is $1,000, while in Texas it can be up to $30,000. In some states, a debtor’s residence can never be taken, no matter how valuable it is, while in others the protected value is less than $10,000. This means that how much you lose to creditors or have to give up when you file for bankruptcy depends largely on where you live.
If you use the state exemptions in any state, you can also claim certain exemptions set by federal law as well as those listed in the federal nonbankruptcy exemptions. Are you beginning to see why it’s so confusing?
Several states have created a “wildcard,” which is an exemption that you can apply to any property. For example, if you own a car in Connecticut worth $2,500 and the exemption for motor vehicles is $1,500, you can use the $1,000 the state allows as a wildcard to make up the difference. You can also use a wildcard to exempt property that isn’t listed as an exemption, such as a piece of art. The value of the wildcard, like other exemption amounts, varies from state to state.
On top of the state versus federal law options, you must also pay attention to the residency requirements. The 2005 revisions to the bankruptcy laws created new residency requirements for debtors. Congress wanted to discourage people from moving to states with more liberal exemptions and then filing for bankruptcy. You must, therefore, have lived in a state for two years before you can use that state’s exemptions. If you have lived there for less than 2 years, you count back 2 years from the date you file for bankruptcy and then look at where you lived for the 180 days (6 months) before that. Whichever state you have lived in for the longest time during that 6-month period is the state whose exemptions you can use. Some states, though, don’t allow you to use their exemptions unless you currently live in that state. If you get caught in this gap, you’ll have to use the federal exemptions.
Although you can’t use state exemptions if you have lived in a location for less than two years, you can use the federal exemptions after only 91 days if the state where you’re filing allows you to. For example, if you want to use the federal exemptions but live in New York, where they are not allowed, you can move to New Jersey, live there for 91 days and file for bankruptcy in New Jersey using the federal exemptions. If you have lived in a new state for less than 91 days, you must either file in the last state you lived in for more than 91 days or wait to file your bankruptcy until after you’ve lived in your current state for 91 days.
How to Choose Between Exemptions
The exemptions that work best for you will depend on the property you most want to protect. If your priority is to protect your home, you will focus on homestead exemptions. If your state’s homestead exemption is larger than the federal exemption of $20,200, the state exemptions might work better for you. If your main asset is a motor vehicle, you will look at the amount of exemption available for a car, as well as any wildcard amount.
For example, the federal exemptions (and the alternate California exemptions) allow you to use at least part of the homestead exemption as a wildcard for other property. This means under the federal exemptions, you can exempt $3, 225 for a motor vehicle and add up to $10,125 of the unused homestead exemptions as a wildcard, plus the federal wildcard amount of $1,075. For people who don’t own their homes, the federal exemptions and the alternate California exemptions are usually more favorable.
Single or Married
In some circumstances, a married couple filing a joint bankruptcy can double the amount of exemptions. You may always do this under the federal exemptions, if they are available in your state. State exemptions, however, sometimes allow you to double the exemption amount and sometimes they don’t. You’ll need to check your state’s exemptions carefully.
If you intend to double the exemptions amount for a single piece of property, such as the homestead exemption on your residence, the property must be jointly owned by you and your spouse. Otherwise, you can only take one exemption.
Filing for bankruptcy is a lot easier with the help of a local bankruptcy attorney.
Click here for information on specific state bankruptcy laws.
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