Updated: 2020-08-26 by
Which State's Exemptions Must You Use?
Legal test under the 2005 bankruptcy law:
IF you have not lived in for at least two years...
Then, which state did you consider to be your domicile two years ago?
(If more than one state, choose the state in which you lived most for the six months ending two years ago from this date.)
Residency Requirements for Using State Exemptions
Prior to the new bankruptcy law, filers used the exemptions of the state where they lived when they filed for bankruptcy. Under the new rules, however, some filers will have to use the exemptions of the state where they used to live. Congress was concerned about people gaming the system by moving to states with liberal exemptions just to file for bankruptcy. As a result, it passed residency requirements filers have to meet before they can use a state’s exemption system.
Here are the new rules that apply to exemptions for everything but a home:
- If you have lived or made your residence in your current state for at least two years, you can use that state’s exemptions.
- If you have lived or made your residence in your current state for more than 91 days but less than two years, you must use the exemptions of the state where you lived for the better part of the 180-day period immediately prior to the two-year period preceding your filing.
- If you have lived or made your residence in your current state for fewer than 91 days, you’ll need to wait until you have lived there for at least 91 days before you can file (and then use whatever exemptions are available to you according to the rules set out above).
- If the state you are filing in offers a choice between the state and federal bankruptcy exemptions, you can use the federal exemption list regardless of how long you’ve been living in the state.
- If these rules deprive you of the right to use any state’s exemptions, you can use the federal exemption list. For example, some states allow their exemptions to be used only by current state residents, which might leave former residents who haven’t lived in their new home state for at least two years without any available state exemptions.
A longer residency requirement applies to homestead exemptions: If you acquired a home in your current state within the 40 months before you file for bankruptcy (and you didn’t purchase it with the proceeds from selling another home in that state), your homestead exemption will be subject to a cap of $125,000, even if the state homestead exemption available to you is larger. For detailed information on homestead exemptions, see Ch. 4.
NOTE - a potential 'Catch 22': In some states, exemption rules can only be used by a resident, or if you have your "domicile" there. But the federal rule says you must use the state you moved away from. So.... IF your former state's exemption laws, for which you may "qualify" under the federal formula, do not apply to non-residents -- then your your answer gets more complicated. See the site exemptionsexpress.com/How.htm for a more detailed explanation of this issue.
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Every state has laws that designate certain types of property (your home, some personal possessions, tools of your trade) that are off-limits to "unsecured" creditors. Some states give you the option of using the Federal bankruptcy exemptions.
Many states exemption laws do not protect property from certain kinds of creditors claims, such as child support, taxes, and claims of secured creditors.
A quick summary of the main exemptions under North Carolina law.