Massachusetts Homesteads Protect Children
By L. Jed Berliner, Massachusetts Bankruptcy Attorney on Apr 27, 2008 in Bankruptcy Cases & Legislation, Benefits of Bankruptcy, Exemption Issues, Massachusetts
The purpose of the Massachusetts homestead is to protect families, not just debtors. It should come as no surprise that a home remains protected if a child occupies the home even if the parent-debtor has moved out. The parties in In re Thompson, 2008 Bankr. LEXIS 1199 all overlooked this point and argued about whether the debtor’s absence from the home meant that the homestead was abandoned, even if he intended to return later.
Massachusetts bankruptcy courts split on whether a homestead can be abandoned. Compare In re Marrama, 307 B.R. 332 (Bankr. D. Mass. 2004) (Hillman, J.) (yes) with In re Webber, 278 B.R. 294 (Bankr. D. Mass. 2002) (Kenner, J.) (no) and In re Melito, 357 B.R. 584 (Bankr. D. Mass. 2007) (Somma, J.) (no).
In the Thompson case, Judge Henry J. Boroff observed that words of the homestead statute meant that the occupying child caused the homestead protection to continue, even if the parent-debtor had left the home. Judge Boroff noted that the occupying child could be of any age so long as the absent parent-debtor was alive, but must be younger than 18 if the parent-debtor was dead.
All this would be different if there was an occupying widow, or if the occupying child’s other parent was the homestead declarant. Confused? Are your eyes crossed a bit, maybe blurry too? Better seek the advice of counsel.
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