ExemptionsExpress The Guide to Exemption Options For Bankruptcy Attorneys
John R. Bates'
Is there a 730-day state?
START: Is there a state in which the debtor's domicile* will have been located continuously for (at least) 730 days** immediately preceding the anticipated date of the filing of the petition?
YES: If there is such a 730-day state, debtor may use that state's exemptions. Debtor may optionally use the federal bankruptcy exemptions if that state is any of the following, which have not opted out of the federal exemptions: Alaska, Arkansas, Connecticut, District of Columbia, Hawaii, Kentucky, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Texas, Vermont, Virgin Islands, Washington, Wisconsin.
*Domicile is established by physical presence in a place with intent to remain there for an unlimited or indefinite period of time. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, (1989); Freeman v. Northwest Acceptance Corp., 754 F.2d 553 (5th Cir.1985). A person can have only one domicile at a particular time, even though he may have several residences.Williamson v. Osenton, 232 U.S. 619 (1914); In re Sparfven, 265 B.R. 506, 518–19 (Bankr.D.Mass.2001) (“when a person has more than one residence, intent is particularly relevant”).
Some factors considered in establishing domicile include: (1) current residence; (2) voting registration and voting practices; (3) location of spouse and family; (4) location of personal or real property; (5) location of brokerage and bank accounts; (6) memberships in churches, clubs, unions and other organizations; (7) location of a person's physician, lawyer, accountant, dentist and stockbroker; (8) place of employment or business; (9) driver's license and automobile registration; and (10) payment of taxes. In re Stone, 329 B.R. 860 (N.D. Iowa 2005).
**“Days” means calendar days and the counting begins on the calendar day before the day the petition was filed. In re Dufva, 2008 WL 2065198 (Bankr. W.D. Mo. 2008).