Do You Have To Be A Florida Resident To Claim Florida Exemptions?
I would appreciate anyone's thoughts on the following questions posed by a bankruptcy attorney in Kentucky. The attorney represented prospective bankruptcy debtors who moved to Kentucky from Florida within the past two years. Under the new bankruptcy law, they are ineligible to use Kentucky exemptions because they had not resided in that state for two years. The last state where they lived for two years was Florida. The attorney concluded that Florida exemptions would apply to his Kentucky case, except for one issue. He asked me whether a person has to be a resident of Florida to be eligible for Florida's exemption under a Florida statute or the Florida constitution. If so, his clients, now Kentucky residents, could not use Florida exemptions and would file bankruptcy under federal default exemptions.
Only Florida residents can file bankruptcy in Florida. Any of my clients who filed bankruptcy, being Florida residents, were eligible for Florida exemptions in bankruptcy. I never have had to determine whether a person had to be a Florida resident to claim Florida exemptions because I never did, or could, file a bankruptcy in Florida for a non-resident. I cannot find any provision of the Florida statutes that specifically states that only Florida residents are protected by Florida's exemptions. Clearly, only Florida residents can claim homestead protection of the Florida Constitution because the definition of homestead is one's place of residence, and if your homestead is in Florida you are a resident of Florida.
I do not know the answer to the question facing the Kentucky attorney. If a reader knows authority that supports the position the person filing bankruptcy in Kentucky cannot take Florida exemptions and is under federal bankruptcy exemptions, please send me an email. Thanks.
posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida
In the absence of legal guidance, from case law or statute, I tend to rely on common sense. Anyone who files for bankruptcy, excepting perhaps resident aliens, is entitled to choose between federal and state exemptions. The new law says that he cannot use Kentucky exemptions for two years, and thus I conclude he continues to be eligible to elect Florida exemptions during that time. This is not based on Florida law; it is based on an interpretation of Federal bankruptcy law. And the conclusion is supported by consideration of the evident purpose of the limitation: to prevent forum shopping by those who might be tempted to move to another state just to take advantage of its exemptions.
How do I find out if maintaining a post office box in Florida over an uninterrupted period of 6 years constitutes a basis for claiming Florida residency especially if during this time the person in question has lived and continues to live in countries other than the US? This relates to a chapter 7 filing in Florida.
In Florida or anywhere in the US, could a filer in Florida successfully get debts discharged if the debts are payments the debtor is ordered to pay by a foreign court order. In this case, it's the Ontario Superior court. Other debt the debtor is trying to discharge is based on a similar order in a state other than Florida.