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Two Florida Third District Court of Appeals 2007 decisions provide a review of the meaning of the Florida Homestead Exemption in three different contexts. These decisions are Phillips et al. v. Hirshon, etc. el al., 32 Fla. L. Weekly D1151 (Fla. 3d DCA May 2, 2007) and Cutler v Cutler, 32 Fla. L.Weekly D538 (Fla. 3d DCA Feb. 28, 2007). In these decisions, the Court noted that homestead is given meaning in three different contexts under Florida law: 1. exemption from taxation per Art. VII, Section 6, Fla. Constit., 2. exemption from forced sale before and at death per Art. X, Section 4(a)-(b), Fla. Const., and 3. restrictions on devise and alienation, Art. X, Section 4(c), Fla. Const. See also Snyder v. Davis, 699 So.2d 999 (Fla. 1997)
The Court in Phillips observed in a footnote that the definition of homestead property for Article VII, section 6 purposes (taxation) is not the same as Article X, section 4 (forced sale and devise and alienation).
The Court in Cutler notes that neither the Florida Legislature nor the Florida Constitution provide a definition of what is homestead property for purposes of Art. X, Section 4 (a)(forced sale and devise and alienation). The Court states that based on the text of the Florida constitution and applicable case law, it is apparent that the following requirements must be satisfied for property to be determined as homestead property: 1. the property must be owned by a "natural person", 2. the person claiming the exemption must be a Florida resident who establishes that he intends to make the real property his permanent residence, 3. the person claiming the exemption must establish that he is the owner of the property, and 4. the property claimed as the homestead must satisfy the size and contiguity requirements of the constitution. Furthermore, the Court noted that the Florida Constitution does not limit the types of estates that are eligible for homestead status. Therefore, the exemption may generally attach to any estate in land whether it is a freehold or lesser estate. A life estate has been expressly found to be among the property interests eligible for homestead status. Furthermore, the Court noted that real property held in trust can be impressed with the character of homestead, including revocable and irrevocable trusts.
A provision protecting homestead property first appeared in the Florida Constitution of 1868. Art. IX, Section 1, Fla. Const. (1868). The Court noted that historical materials indicate that it was originally inspired by a desperate attempt by Floridians to repel the invations of "Yankee carpetbaggers" at the end of the Civil War. The limitation on devise and aliention first appeared in the 1885 Constitution. Art. IX, Section 1-3, Fla. Const. (1868).(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications
When you file bankruptcy protection debtors are required to list their assets. This information is recorded in Schedule C of your filing documents or your petition. If you have children you may have concerns about their property and whether bankruptcy can assist in keeping them away from creditors. In most cases, this is not an […]
When you file bankruptcy protection debtors are required to list their assets. This information is recorded in Schedule C of your filing documents or your petition. If you have children you may have concerns about their property and whether bankruptcy can assist in keeping them away from creditors. In most cases, this is not an... Read more »
The post Are My Children’s Assets Protected in Bankruptcy? appeared first on AllmandLaw.
When you file bankruptcy protection debtors are required to list their assets. This information is recorded in Schedule C of your filing documents or your petition. If you have children you may have concerns about their property and whether bankruptcy can assist in keeping them away from creditors. In most cases, this is not an... Read more »
The post Are My Children’s Assets Protected in Bankruptcy? appeared first on AllmandLaw.
When you file bankruptcy protection debtors are required to list their assets. This information is recorded in Schedule C of your filing documents or your petition. If you have children you may have concerns about their property and whether bankruptcy can assist in keeping them away from creditors. In most cases, this is not an... Read more »
The post Are My Children’s Assets Protected in Bankruptcy? appeared first on Allmand Law Firm PLLC.
A Totten trust, sometimes referred to as a "payable upon death" account, is a tentative trust that is revocable at will until the depositor completes the gift during his lifetime by some unequivocal act or declaration or subsequently dies. Totten Trust were first recognized in the 1904 New York case of Matter of Totten. Since depositor has complete control over the funds during his lifetime, he is still regarded as the owner of the account. The Court in Matter of Totten ruled as follows:
A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.
The Totten trust doctrine has been accepted in Florida. The totten trust doctrine provides that the deposit by one person of his money in his own name as trustee for another is not a irrevocable trust during the lifetime of the depositor. "It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary." Where the depositor dies before the beneficiary without revocation, it is presumed that an absolute trust is created as to the balance on hand at the death of the depositor.
Totten trusts may be revoked. There are no specific formalities required to evidence the revocation of a Totten trust. Any decisive act or declaration of disaffirmance during the lifetime of the owner will generally suffice.
(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications
A Totten trust, sometimes referred to as a "payable upon death" account, is a tentative trust that is revocable at will until the depositor completes the gift during his lifetime by some unequivocal act or declaration or subsequently dies. Totten Trust were first recognized in the 1904 New York case of Matter of Totten. Since depositor has complete control over the funds during his lifetime, he is still regarded as the owner of the account. The Court in Matter of Totten ruled as follows:
A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.
The Totten trust doctrine has been accepted in Florida. The totten trust doctrine provides that the deposit by one person of his money in his own name as trustee for another is not a irrevocable trust during the lifetime of the depositor. "It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary." Where the depositor dies before the beneficiary without revocation, it is presumed that an absolute trust is created as to the balance on hand at the death of the depositor.
Totten trusts may be revoked. There are no specific formalities required to evidence the revocation of a Totten trust. Any decisive act or declaration of disaffirmance during the lifetime of the owner will generally suffice.
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
The filing fees charged by the Oregon Bankruptcy Court will be going up for new bankruptcy filers on June 1, 2014. Chapter 7 Bankruptcy filings will increase from $306 to $335 and Chapter 13s will increase from $281 to $310. We will still be able to file paperwork enabling our Portland and Salem area Chapter 7 clients to pay all of their filing fees in installments after their cases are filed. We will still be able to pay most Chapter 13 filing fees in installments as well.
Please feel free to contact us if you have any questions about these Court impose filing fee increases. Our attorney fees will not be increasing.
The original post is titled Portland and Salem Bankruptcy Court Filing Fee Increases , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
Although certain types of divorce related debt are non-dischargeable, certain types of debt are dischargeable in bankruptcy Whether an item is dischargeable also depends on whether the case is filed under chapter 7 or chapter 13.
Domestic Support Obligations - Alimony, Maintenance or Support
"Domestic Support Obligations" are not dischargeable in chapter 7 or chapter 13. Section 523(a)(5) of the Bankruptcy Code excludes from discharge any debt "for a domestic support obligation." A domestic support obligation is a
"debt...owed to or recoverable by (i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative...in the nature of alimony, maintenance, or support of such spouse, former spouse, or child of the debtor of such child's parent, without regard to whether such debt is express so designated; ... established ...by reason of (i) a separation agreement, divorce decree, or property settlement agreement. 11 USC 101 § 101 (14A)
The determination of whether a particular divorce-related debt is a "domestic support obligation" is a question of federal law. In making this determination, the court "cannot rely solely on the label used by the parties" and must "look beyond the label to examine whether the debt actually is in the nature of support or alimony." Cummings. v. Cummings, 244 F.3d 1263, 1265 (11th Cir. 2001). Courts have held that the touchstone for dischargeability of a domestic support obligation is the intent of the parties. Cummings, 244 F.3d at 1266. Whether a debt is "in the nature of ... support" is determined by an element of need. In re: Lutzke, 223 B.R. 552, 554 (Bankr. D. Or. 1998). Where a former spouse does not establish an element of need or a disparity of incomes, courts generally hold that a debt cannot be characterized as a "domestic support obligation".
Debts from Property Settlements- Chapter 7 and Chapter 13
Debts, such as those incurred in a property settlement agreement, to a spouse, former spouse, or child of the debtor that are not "domestic support obligations" that are "incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of court" are also not dischargeable in chapter 7, but they are generally dischargeable in a chapter 13 case. Steele v. Heard, 487 B.R. 302, 308 (S.D. Ala. 2013).
(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications
Although certain types of divorce related debt are non-dischargeable in bankruptcy, certain types of divorce debt are dischargeable in bankruptcy Whether an item is dischargeable depends on
- the nature of the debt
- whether the case is filed under chapter 7 or chapter 13
Domestic Support Obligations - Alimony, Maintenance or Support
"Domestic Support Obligations" are not dischargeable in either chapter 7 or chapter 13. Section 523(a)(5) of the Bankruptcy Code excludes from discharge any debt "for a domestic support obligation." A domestic support obligation is a
"debt...owed to or recoverable by (i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative...in the nature of alimony, maintenance, or support of such spouse, former spouse, or child of the debtor of such child's parent, without regard to whether such debt is express so designated; ... established ...by reason of (i) a separation agreement, divorce decree, or property settlement agreement. 11 USC 101 § 101 (14A)
The determination of whether a particular divorce-related debt is a "domestic support obligation" is a question of federal law. In making this determination, the court does not solely rely on the label placed on the debt in the divorce judgment but looks beyond the state court label and examines whether the debt is actually in the nature of support or alimony." Cummings. v. Cummings, 244 F.3d 1263, 1265 (11th Cir. 2001).
Factors in making this determination include the intentions of the parties, whether there is an element of need, and whether there is a disparity of incomes. Cummings, 244 F.3d at 1266. In re: Lutzke, 223 B.R. 552, 554 (Bankr. D. Or. 1998).
Debts from Property Settlements- Chapter 7 vs. Chapter 13
Even if the debt is not for a "domestic support obligation," a debt
- to a spouse, former spouse, or child of the debtor
- that is incurred in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of court
are also not dischargeable in chapter 7, but they are generally dischargeable in a chapter 13 case. Steele v. Heard, 487 B.R. 302, 308 (S.D. Ala. 2013).
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
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