homestead exemption under 704.730 and minor child form whom debtor

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The text of the code is below. If you have 51% custody of a minor, is that
enough to qualify you to get the $100K exemption instead of only the $75K
exemtion?
C.C.P. 704.710-730
704.710. As used in this article:
(a) "Dwelling" means a place where a person resides and may
include but is not limited to the following:
(1) A house together with the outbuildings and the land upon which
they are situated.
(2) A mobilehome together with the outbuildings and the land upon
which they are situated.
(3) A boat or other waterborne vessel.
(4) A condominium, as defined in Section 783 of the Civil Code.
(5) A planned development, as defined in Section 11003 of the
Business and Professions Code.
(6) A stock cooperative, as defined in Section 11003.2 of the
Business and Professions Code.
(7) A community apartment project, as defined in Section 11004 of
the Business and Professions Code.
(b) "Family unit" means any of the following:
(1) The judgment debtor and the judgment debtor's spouse if the
spouses reside together in the homestead.
(2) The judgment debtor and at least one of the following persons
who the judgment debtor cares for or maintains in the homestead:
(A) The minor child or minor grandchild of the judgment debtor or
the judgment debtor's spouse or the minor child or grandchild of a
deceased spouse or former spouse.
(B) The minor brother or sister of the judgment debtor or judgment
debtor's spouse or the minor child of a deceased brother or sister
of either spouse.
(C) The father, mother, grandfather, or grandmother of the
judgment debtor or the judgment debtor's spouse or the father,
mother, grandfather, or grandmother of a deceased spouse.
(D) An unmarried relative described in this paragraph who has
attained the age of majority and is unable to take care of or support
himself or herself.
(3) The judgment debtor's spouse and at least one of the persons
listed in paragraph (2) who the judgment debtor's spouse cares for or
maintains in the homestead.
(c) "Homestead" means the principal dwelling (1) in which the
judgment debtor or the judgment debtor's spouse resided on the date
the judgment creditor's lien attached to the dwelling, and (2) in
which the judgment debtor or the judgment debtor's spouse resided
continuously thereafter until the date of the court determination
that the dwelling is a homestead. Where exempt proceeds from the sale
or damage or destruction of a homestead are used toward the
acquisition of a dwelling within the six-month period provided by
Section 704.720, "homestead" also means the dwelling so acquired if
it is the principal dwelling in which the judgment debtor or the
judgment debtor's spouse resided continuously from the date of
acquisition until the date of the court determination that the
dwelling is a homestead, whether or not an abstract or certified copy
of a judgment was recorded to create a judgment lien before the
dwelling was acquired.
(d) "Spouse" does not include a married person following entry of
a judgment decreeing legal separation of the parties, unless such
married persons reside together in the same dwelling.
704.720. (a) A homestead is exempt from sale under this division to
the extent provided in Section 704.800.
(b) If a homestead is sold under this division or is damaged or
destroyed or is acquired for public use, the proceeds of sale or of
insurance or other indemnification for damage or destruction of the
homestead or the proceeds received as compensation for a homestead
acquired for public use are exempt in the amount of the homestead
exemption provided in Section 704.730. The proceeds are exempt for a
period of six months after the time the proceeds are actually
received by the judgment debtor, except that, if a homestead
exemption is applied to other property of the judgment debtor or the
judgment debtor's spouse during that period, the proceeds thereafter
are not exempt.
(c) If the judgment debtor and spouse of the judgment debtor
reside in separate homesteads, only the homestead of one of the
spouses is exempt and only the proceeds of the exempt homestead are
exempt.
(d) If a judgment debtor is not currently residing in the
homestead, but his or her separated or former spouse continues to
reside in or exercise control over possession of the homestead, that
judgment debtor continues to be entitled to an exemption under this
article until entry of judgment or other legally enforceable
agreement dividing the community property between the judgment debtor
and the separated or former spouse, or until a later time period as
specified by court order. Nothing in this subdivision shall entitle
the judgment debtor to more than one exempt homestead.
Notwithstanding subdivision (d) of Section 704.710, for purposes of
this article, "spouse" may include a separated or former spouse
consistent with this subdivision.
704.730. (a) The amount of the homestead exemption is one of the
following:
(1) Seventy-five thousand dollars ($75,000) unless the judgment
debtor or spouse of the judgment debtor who resides in the homestead
is a person described in paragraph (2) or (3).
(2) One hundred thousand dollars ($100,000) if the judgment debtor
or spouse of the judgment debtor who resides in the homestead is at
the time of the attempted sale of the homestead a member of a family
unit, and there is at least one member of the family unit who owns no
interest in the homestead or whose only interest in the homestead is
a community property interest with the judgment debtor.
(3) One hundred seventy-five thousand dollars ($175,000) if the
judgment debtor or spouse of the judgment debtor who resides in the
homestead is at the time of the attempted sale of the homestead any
one of the following:
(A) A person 65 years of age or older.
(B) A person physically or mentally disabled who as a result of
that disability is unable to engage in substantial gainful
employment. There is a rebuttable presumption affecting the burden of
proof that a person receiving disability insurance benefit payments
under Title II or supplemental security income payments under Title
XVI of the federal Social Security Act satisfies the requirements of
this paragraph as to his or her inability to engage in substantial
gainful employment.
(C) A person 55 years of age or older with a gross annual income
of not more than twenty-five thousand dollars ($25,000) or, if the
judgment debtor is married, a gross annual income, including the
gross annual income of the judgment debtor's spouse, of not more than
thirty-five thousand dollars ($35,000) and the sale is an
involuntary sale.
(b) Notwithstanding any other provision of this section, the
combined homestead exemptions of spouses on the same judgment shall
not exceed the amount specified in paragraph (2) or (3), whichever is
applicable, of subdivision (a), regardless of whether the spouses
are jointly obligated on the judgment and regardless of whether the
homestead consists of community or separate property or both.
Notwithstanding any other provision of this article, if both spouses
are entitled to a homestead exemption, the exemption of proceeds of
the homestead shall be apportioned between the spouses on the basis
of their proportionate interests in the homestead.
Giovanni Orantes, Esq.
Certified Bankruptcy Specialist*
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 2920
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
Commercial Litigation
*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
Estate Planning
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO
AND SANTA BARBARA AND THE WORLD FOR CHAPTER 11 AND 15 CASES.
Note: The information contained in this e-mail message is confidential
information intended only for the use of the individual or entity named. If
the reader of this message is not the intended recipient or an agent
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is strictly prohibited. If you have received this communication in error,
please immediately notify us by telephone or e-mail and delete the original
e-mail at (213) 389-4362 or (888) 619-8222.
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by the Internal Revenue Service, we inform you that any U.S. tax advice
contained in this communication (including any attachments) is not intended
to be used, and cannot be used, for the purpose of (i) avoiding penalties
under the Internal Revenue Code or (ii) promoting, marketing, or
recommending to another party any transaction or matter addressed herein.
The text of the code is below. If you have 51% custody of a minor, is that enough to qualify you to get the $100K exemption instead of only the $75K exemtion?C.C.P. 704.710-730
704.710. As used in this article:
(a) "Dwelling" means a place where a person resides and may
include but is not limited to the following:
(1) A house together with the outbuildings and the land upon which
they are situated.
(2) A mobilehome together with the outbuildings and the land upon
which they are situated.
(3) A boat or other waterborne vessel.
(4) A condominium, as defined in Section 783 of the Civil Code.
(5) A planned development, as defined in Section 11003 of the
Business and Professions Code.
(6) A stock cooperative, as defined in Section 11003.2 of the
Business and Professions Code.
(7) A community apartment project, as defined in Section 11004 of
the Business and Professions Code.
(b) "Family unit" means any of the following:
(1) The judgment debtor and the judgment debtor's spouse if the
spouses reside together in the homestead.
(2) The judgment debtor and at least one of the following persons
who the judgment debtor cares for or maintains in the homestead:
(A) The minor child or minor grandchild of the judgment debtor or
the judgment debtor's spouse or the minor child or grandchild of a
deceased spouse or former spouse.
(B) The minor brother or sister of the judgment debtor or judgment
debtor's spouse or the minor child of a deceased brother or sister
of either spouse.
(C) The father, mother, grandfather, or grandmother of the
judgment debtor or the judgment debtor's spouse or the father,
mother, grandfather, or grandmother of a deceased spouse.
(D) An unmarried relative described in this paragraph who has
attained the age of majority and is unable to take care of or support
himself or herself.
(3) The judgment debtor's spouse and at least one of the persons
listed in paragraph (2) who the judgment debtor's spouse cares for or
maintains in the homestead.
(c) "Homestead" means the principal dwelling (1) in which the
judgment debtor or the judgment debtor's spouse resided on the date
the judgment creditor's lien attached to the dwelling, and (2) in
which the judgment debtor or the judgment debtor's spouse resided
continuously thereafter until the date of the court determination
that the dwelling is a homestead. Where exempt proceeds from the sale
or damage or destruction of a homestead are used toward the
acquisition of a dwelling within the six-month period provided by
Section 704.720, "homestead" also means the dwelling so acquired if
it is the principal dwelling in which the judgment debtor or the
judgment debtor's spouse resided continuously from the date of
acquisition until the date of the court determination that the
dwelling is a homestead, whether or not an abstract or certified copy
of a judgment was recorded to create a judgment lien before the
dwelling was acquired.
(d) "Spouse" does not include a married person following entry of
a judgment decreeing legal separation of the parties, unless such
married persons reside together in the same dwelling.
704.720. (a) A homestead is exempt from sale under this division to
the extent provided in Section 704.800.
(b) If a homestead is sold under this division or is damaged or
destroyed or is acquired for public use, the proceeds of sale or of
insurance or other indemnification for damage or destruction of the
homestead or the proceeds received as compensation for a homestead
acquired for public use are exempt in the amount of the homestead
exemption provided in Section 704.730. The proceeds are exempt for a
period of six months after the time the proceeds are actually
received by the judgment debtor, except that, if a homestead
exemption is applied to other property of the judgment debtor or the
judgment debtor's spouse during that period, the proceeds thereafter
are not exempt.
(c) If the judgment debtor and spouse of the judgment debtor
reside in separate homesteads, only the homestead of one of the
spouses is exempt and only the proceeds of the exempt homestead are
exempt.
(d) If a judgment debtor is not currently residing in the
homestead, but his or her separated or former spouse continues to
reside in or exercise control over possession of the homestead, that
judgment debtor continues to be entitled to an exemption under this
article until entry of judgment or other legally enforceable
agreement dividing the community property between the judgment debtor
and the separated or former spouse, or until a later time period as
specified by court order. Nothing in this subdivision shall entitle
the judgment debtor to more than one exempt homestead.
Notwithstanding subdivision (d) of Section 704.710, for purposes of
this article, "spouse" may include a separated or former spouse
consistent with this subdivision.
704.730. (a) The amount of the homestead exemption is one of the
following:
(1) Seventy-five thousand dollars ($75,000) unless the judgment
debtor or spouse of the judgment debtor who resides in the homestead
is a person described in paragraph (2) or (3).
(2) One hundred thousand dollars ($100,000) if the judgment debtor
or spouse of the judgment debtor who resides in the homestead is at
the time of the attempted sale of the homestead a member of a family
unit, and there is at least one member of the family unit who owns no
interest in the homestead or whose only interest in the homestead is
a community property interest with the judgment debtor.
(3) One hundred seventy-five thousand dollars ($175,000) if the
judgment debtor or spouse of the judgment debtor who resides in the
homestead is at the time of the attempted sale of the homestead any
one of the following:
(A) A person 65 years of age or older.
(B) A person physically or mentally disabled who as a result of
that disability is unable to engage in substantial gainful
employment. There is a rebuttable presumption affecting the burden of
proof that a person receiving disability insurance benefit payments
under Title II or supplemental security income payments under Title
XVI of the federal Social Security Act satisfies the requirements of
this paragraph as to his or her inability to engage in substantial
gainful employment.
(C) A person 55 years of age or older with a gross annual income
of not more than twenty-five thousand dollars ($25,000) or, if the
judgment debtor is married, a gross annual income, including the
gross annual income of the judgment debtor's spouse, of not more than
thirty-five thousand dollars ($35,000) and the sale is an
involuntary sale.
(b) Notwithstanding any other provision of this section, the
combined homestead exemptions of spouses on the same judgment shall
not exceed the amount specified in paragraph (2) or (3), whichever is
applicable, of subdivision (a), regardless of whether the spouses
are jointly obligated on the judgment and regardless of whether the
homestead consists of community or separate property or both.
Notwithstanding any other provision of this article, if both spouses
are entitled to a homestead exemption, the exemption of proceeds of
the homestead shall be apportioned between the spouses on the basis
of their proportionate interests in the homestead.-- Giovanni Orantes, Esq.Certified Bankruptcy Specialist* Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 2920
Los Angeles, CA 90010Tel: (213) 389-4362Fax: (877) 789-5776e-mail: go@gobklaw.comwebsite: www.gobklaw.com
Commercial Litigation*Board Certified - Business Bankruptcy Law - American Board of Certification*Board Certified - Consumer Bankruptcy Law - American Board of CertificationEstate Planning
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA AND THE WORLD FOR CHAPTER 11 AND 15 CASES.
Note: The information contained in this e-mail message is confidential information intended only for the use of the individual or entity named. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone or e-mail and delete the original e-mail IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

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