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Right to exemption by nonfiling separated wife
The version of the statute that went into effect on January 1, 2013 is:
*703.140. *
(a) In a case under Title 11 of the United States Code, all of the
exemptions provided by this chapter, including the homestead exemption,
other than the provisions of subdivision (b) are applicable regardless of
whether there is a money judgment against the debtor or whether a money
judgment is being enforced by execution sale or any other procedure, but
the exemptions provided by subdivision (b) may be elected in lieu of all
other exemptions provided by this chapter, as follows:
(1) If a husband and wife are joined in the petition, they jointly may
elect to utilize the applicable exemption provisions of this chapter other
than the provisions of subdivision (b), or to utilize the applicable
exemptions set forth in subdivision (b), but not both.
(2) If the petition is filed individually, and not jointly, for a husband
or a wife, the exemptions provided by this chapter other than the
provisions of subdivision (b) are applicable, except that, if both the
husband and the wife effectively waive in writing the right to claim,
during the period the case commenced by filing the petition is pending, the
exemptions provided by the applicable exemption provisions of this chapter,
other than subdivision (b), in any case commenced by filing a petition for
either of them under Title 11 of the United States Code, then they may
elect to instead utilize the applicable exemptions set forth in subdivision
(b).
(3) If the petition is filed for an unmarried person, that person may elect
to utilize the applicable exemption provisions of this chapter other than
subdivision (b), or to utilize the applicable exemptions set forth in
subdivision (b), but not both.
(b) The following exemptions may be elected as provided in subdivision (a):
(1) The debtors aggregate interest, not to exceed twenty-four thousand
sixty dollars ($24,060) in value, in real property or personal property
that the debtor or a dependent of the debtor uses as a residence, in a
cooperative that owns property that the debtor or a dependent of the debtor
uses as a residence.
(2) The debtors interest, not to exceed four thousand eight hundred
dollars ($4,800) in value, in one or more motor vehicles.
(3) The debtors interest, not to exceed six hundred dollars ($600) in
value in any particular item, in household furnishings, household goods,
wearing apparel, appliances, books, animals, crops, or musical instruments,
that are held primarily for the personal, family, or household use of the
debtor or a dependent of the debtor.
(4) The debtors aggregate interest, not to exceed one thousand four
hundred twenty-five dollars ($1,425) in value, in jewelry held primarily
for the personal, family, or household use of the debtor or a dependent of
the debtor.
(5) The debtors aggregate interest, not to exceed in value one thousand
two hundred eighty dollars ($1,280) plus any unused amount of the exemption
provided under paragraph (1), in any property.
(6) The debtors aggregate interest, not to exceed seven thousand one
hundred seventy-five dollars ($7,175) in value, in any implements,
professional books, or tools of the trade of the debtor or the trade of a
dependent of the debtor.
(7) Any unmatured life insurance contract owned by the debtor, other than a
credit life insurance contract.
(8) The debtors aggregate interest, not to exceed in value twelve thousand
eight hundred sixty dollars ($12,860), in any accrued dividend or interest
under, or loan value of, any unmatured life insurance contract owned by the
debtor under which the insured is the debtor or an individual of whom the
debtor is a dependent.
(9) Professionally prescribed health aids for the debtor or a dependent of
the debtor.
(10) The debtors right to receive any of the following:
(A) A social security benefit, unemployment compensation, or a local public
assistance benefit.
(B) A veterans benefit.
(C) A disability, illness, or unemployment benefit.
(D) Alimony, support, or separate maintenance, to the extent reasonably
necessary for the support of the debtor and any dependent of the debtor.
(E) A payment under a stock bonus, pension, profit-sharing, annuity, or
similar plan or contract on account of illness, disability, death, age, or
length of service, to the extent reasonably necessary for the support of
the debtor and any dependent of the debtor, unless all of the following
apply:
(i) That plan or contract was established by or under the auspices of an
insider that employed the debtor at the time the debtors rights under the
plan or contract arose.
(ii) The payment is on account of age or length of service.
(iii) That plan or contract does not qualify under Section 401(a), 403(a),
403(b), 408, or 408A of the Internal Revenue Code of 1986.
(11) The debtors right to receive, or property that is traceable to, any
of the following:
(A) An award under a crime victims reparation law.
(B) A payment on account of the wrongful death of an individual of whom the
debtor was a dependent, to the extent reasonably necessary for the support
of the debtor and any dependent of the debtor.
(C) A payment under a life insurance contract that insured the life of an
individual of whom the debtor was a dependent on the date of that
individuals death, to the extent reasonably necessary for the support of
the debtor and any dependent of the debtor.
(D) A payment, not to exceed twenty-four thousand sixty dollars ($24,060),
on account of personal bodily injury of the debtor or an individual of whom
the debtor is a dependent.
(E) A payment in compensation of loss of future earnings of the debtor or
an individual of whom the debtor is or was a dependent, to the extent
reasonably necessary for the support of the debtor and any dependent of the
debtor.
*(Amended by Stats. 2012, Ch. 678, Sec. 1. Effective January 1, 2013.)*
Sincerely,
*Michael Avanesian, Esq. *
Avanesian Law Firm
101 N. Brand Blvd. PH 1920
Glendale, CA 91203
Tel: 818.276.2477 | Fax: 818.208.4550
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On Wed, Nov 4, 2015 at 1:12 PM, cdcbaa cdcbaamailbox@gmail.com [cdcbaa] wrote:
>
>
>
> Gio:
>
> see 703. Reading it, it appears the subsection (b) exemptions may only
> be taken jointly. In an individual case, cannot chose (b).
>
>
> 703.140. (a) In a case under Title 11 of the United States Code,
> all of the exemptions provided by this chapter, including the
> homestead exemption, other than the provisions of subdivision (b) are
> applicable regardless of whether there is a money judgment against
> the debtor or whether a money judgment is being enforced by execution
> sale or any other procedure, but the exemptions provided by
> subdivision (b) may be elected in lieu of all other exemptions
> provided by this chapter, as follows:
> (1) If a husband and wife are joined in the petition, they jointly
> may elect to utilize the applicable exemption provisions of this
> chapter other than the provisions of subdivision (b), or to utilize
> the applicable exemptions set forth in subdivision (b), but not both.
> (2) If the petition is filed individually, and not jointly, for a
> husband or a wife, the exemptions provided by this chapter other than
> the provisions of subdivision (b) are applicable, except that, if
> both the husband and the wife effectively waive in writing the right
> to claim, during the period the case commenced by filing the petition
> is pending, the exemptions provided by the applicable exemption
> provisions of this chapter, other than subdivision (b), in any case
> commenced by filing a petition for either of them under Title 11 of
> the United States Code, then they may elect to instead utilize the
> applicable exemptions set forth in subdivision (b).
>
> The last sentence reads a little oddly, but it uses the work "they", which is plural, so it appears (b) can only be used if both agree.
>
> My reading is wife will get the homestead, and your guy will get nothing.
>
> I thought this 703.140, was to be changed, but online at legal.info, the statute has not changed. Anyone know what happened to the proposed amendment?
>
> d
>
>
> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503
> 310-328-1001-voice
> [image: cid:part1.03050307.05030101@bklaw.com]
>
> On Oct 14, 2015, at 12:50 PM, Giovanni Orantes go@gobklaw.com [cdcbaa] cdcbaa@yahoogroups.com> wrote:
>
>
>
> I have a potential client who has been separated from his wife for almost
> 10 years and lives in a different location. At that time, they refinanced
> their house and the wife, who resides in the house, has been the only one
> paying the mortgage on the house. Client is filing and has a little
> business to exempt with the 703 exemptions. Wife has a recorded homestead
> declaration on the property. Wife is not filing and doesn't really want
> anything to do with the potential client. If the property were sold by the
> Trustee, would the wife get her exempt amount pursuant to the homestead
> declaration even though husband is not using any exemption to exempt any
> equity on the property?
>
> --
> Giovanni Orantes, Esq.*
> 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
>
> **Certified Bankruptcy Specialist, State Bar of California, Board of Legal
> Specialization*
> *Board Certified - Business Bankruptcy Law - American Board of
> Certification
> *Board Certified - Consumer Bankruptcy Law - American Board of
> Certification
> Commercial Litigation
> Estate Planning
> Outside General Counsel
>
>
>
> 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.
>
>
>
The version of the statute that went into effect on January 1, 2013 is:
The post was migrated from Yahoo.
Gio:
see 703. Reading it, it appears the subsection (b) exemptions may only be taken jointly. In an individual case, cannot chose (b).
703.140. (a) In a case under Title 11 of the United States Code, all of the exemptions provided by this chapter, including the homestead exemption, other than the provisions of subdivision (b) are applicable regardless of whether there is a money judgment against the debtor or whether a money judgment is being enforced by execution sale or any other procedure, but the exemptions provided by subdivision (b) may be elected in lieu of all other exemptions provided by this chapter, as follows: (1) If a husband and wife are joined in the petition, they jointly may elect to utilize the applicable exemption provisions of this chapter other than the provisions of subdivision (b), or to utilize the applicable exemptions set forth in subdivision (b), but not both. (2) If the petition is filed individually, and not jointly, for a husband or a wife, the exemptions provided by this chapter other than the provisions of subdivision (b) are applicable, except that, if both the husband and the wife effectively waive in writing the right to claim, during the period the case commenced by filing the petition is pending, the exemptions provided by the applicable exemption provisions of this chapter, other than subdivision (b), in any case commenced by filing a petition for either of them under Title 11 of the United States Code, then they may elect to instead utilize the applicable exemptions set forth in subdivision (b).
The last sentence reads a little oddly, but it uses the work "they", which is plural, so it appears (b) can only be used if both agree.
My reading is wife will get the homestead, and your guy will get nothing.
I thought this 703.140, was to be changed, but online at legal.info, the statute has not changed. Anyone know what happened to the proposed amendment?
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Oct 14, 2015, at 12:50 PM, Giovanni Orantes go@gobklaw.com [cdcbaa] wrote:
>
> I have a potential client who has been separated from his wife for almost 10 years and lives in a different location. At that time, they refinanced their house and the wife, who resides in the house, has been the only one paying the mortgage on the house. Client is filing and has a little business to exempt with the 703 exemptions. Wife has a recorded homestead declaration on the property. Wife is not filing and doesn't really want anything to do with the potential client. If the property were sold by the Trustee, would the wife get her exempt amount pursuant to the homestead declaration even though husband is not using any exemption to exempt any equity on the property?
>
> --
> Giovanni Orantes, Esq.*
> 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
>
> *Certified Bankruptcy Specialist, State Bar of California, Board of Legal Specialization
> *Board Certified - Business Bankruptcy Law - American Board of Certification
> *Board Certified - Consumer Bankruptcy Law - American Board of Certification
> Commercial Litigation
> Estate Planning
> Outside General Counsel
>
>
>
> 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.
>
>
The post was migrated from Yahoo.