by Adam Mack
When you file bankruptcy there are two policies that will shape how your case plays out. On one hand, you have certain types of property that are exempt, you will be able to keep exempt assets to allow you to get a fresh start and get on your feet again. On the other hand, property that is not exempt will have to be surrendered to the bankruptcy trustee so that property may be administered (i.e. sold with the proceeds being distributed to creditors). So, one of the most important questions you should ask when filing bankruptcy is ‘What is exempt?’
This question is not as simple as it may appear to be on its surface. There are federal exemptions which many states use. Likewise, there are many of the states which have opted out of the federal exemptions and have created their own exemptions, Kansas is an opt-out-state. If you are reading this article, then it is very likely that you are considering filing a bankruptcy in Kansas. So, you would probably assume that you would use Kansas bankruptcy exemptions however, that assumption may cause you some problems, the law is more intricate than that. The exemptions you will have to use will be determined by;11 USC § 522(b)(3)(A). There are essentially three different scenarios that this rule addresses.
If you have domiciled in Kansas for 730 days (two full years) immediately proceeding the date of filing your case, then you will be able to claim Kansas exemptions. It is important to note what I mean by ‘domicile’. A person’s domicile is the location in which he or she has “voluntarily fixed the habitation of himself and family, not for a mere special or temporary purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.” (Black’s Law Dictionary, 2nd Ed.). As this definition would suggest, it is important to note that your domicile and residence are not the same thing. If you have domiciled in two or more states in the last 730 days, then you are required to use the exemptions of the state you have domiciled in for the 180 days (approximately six months) immediately proceeding the 730 days prior to the filing of your case. If you lived in two or more states during the 180 day period immediately proceeding the 730 day period, then you will have to use the exemption laws of the state where you were resided for the longer portion of that 180 day period.
Of course, no law would be complete without its exceptions. There are states that require a person to be a resident to use their exemptions. So, occasionally a case will arise where a person has domiciled in a state but failed to become a resident of that state for one reason or another. If that state has opted out of the federal exemptions and does not allow non-residents to claim their exemptions, then what is that person to do? Fortunately, there is a solution. Even though Kansas is an opt-out state, when a person filing bankruptcy cannot claim the exemptions of any state, then that person may claim the federal exemptions under 11 USC § 522(d).
The question of what exemptions you should be using is an important one. I have only broadly summarized the most general issues surrounding this question. The exemptions you can claim determine what you will lose or keep if you file bankruptcy. The exemptions determine your exposure and liability. You should seek the guidance of an experienced Kansas bankruptcy lawyer to help you determine which exemptions you should use.
These articles are for general informational use and do not constitute legal advice. Since laws change over time, it’s possible some articles are out of date and for that reason, we make no representation that the articles are fully accurate. For actual, up-to-date legal advice (including a free consultation), please contact us!