Can I File Bankruptcy In My New State?

by Susanne Robicsek, North Carolina Bankruptcy Attorney

October 13, 2011

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If you just moved and you need to file for bankruptcy, don’t panic!  If anyone tells you that you don’t qualify to file because you haven’t lived in your new state for six months, don’t listen to them!  If a lawyer tells you that you can’t file until you have been in your new home for six months,  call another experienced lawyer.  If an attorney doesn’t know that you do not need to live in a new state for the full six months to file bankruptcy there, they probably are not as knowledgeable as you want for your attorney.

Here is the rule and it is pretty simple:

You are supposed to file for bankruptcy where you have lived the greater part of the preceding 180 days ….. in other words where you have lived for MOST of the preceding six months.

To make it even simpler:

The general rule is you need to have been there for 91 days.

That wasn’t so hard, was it?   If the bankruptcy attorney you are talking to doesn’t know that basic fact, what else don’t they know?

The concept of where you are supposed to file a case is called venue.  If you haven’t been in your new state for 91 days, you are supposed to file your case where you used to live , if you lived there long enough.    If you haven’t been in that state long enough or you have moved around a lot, it gets a little more complicated but any good attorney should be able to figure out where you are supposed to file and how long you need to be somewhere.  What exemption applies to you to protect your property is more likely to affect you than the venue question is.  To claim your new state’s exemptions, you have to have lived there for two years.

So, does it really matter that you haven’t been in your new home long?  Probably not.  Many people can wait a little while to file for bankruptcy.  In the time you have to reach the magic day, you can consult a lawyer, plan to file, pay your lawyer and complete paperwork.  Before you know it, you have been in the state long enough to pass 91 days.

If you have a true emergency filing situation, you should consider filing where you meet the requirements, or ask an experienced lawyer whether or not the 91 day rule is strictly enforced.  You may take a risk filing early, but you might not have much of a choice under the circumstances if you can’t get back to where you are supposed to be properly filed.

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Concentrating in Consumer Bankruptcy Law since 1988; Wake Forest Law School JD 1987 Law Office of Susanne M. Robicsek since 1993, Law Clerk to Judge Rufus Reynolds, US Bankruptcy Judge for Middle District of NC; Burns Price & Arneke, PA, David Badger and Associates, PA.

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Last modified: December 20, 2012