For the past three weeks I’ve been writing about filing bankruptcy pro se, or by yourself. We’ve covered what it means to file pro se; the credit counseling requirement; the difference between secured and unsecured debt; the Means Test, or how to know if you qualify to file Chapter 7; and gathering the information needed to file. Today we’ll talk about where to file.
It might make sense that a person files bankruptcy where they live. If they live in Utah, they file in Utah. In most cases, that would be correct. But there are some wrinkles in bankruptcy, and the concept of where a person lives isn’t always simple, either.
In the law, we talk about domicile, which is the place a person considers their home. For most intents and purposes, a person can determine her domicile by answering the question, where (meaning in what state) do you live. Sometimes this gets a little tricky, such as where a person goes to school out of state. Does he consider himself to be living permanently in the state where the school is, or does he consider himself to be living in his home state?
Domicile and residence are not the same thing. As in the example of the student away from home for school, that student might consider herself to be living in the state where she is going to school, but be considered a resident of her “home” state, or the state she is from.
Under the bankruptcy law, a person can file either in her state of domicile or in her state of residence.
Length of Domicile or Residence.
This isn’t to say that a person has a choice between the state of domicile and the state of residence if they are different. There is a second requirement, and that is how long the person has had her domicile or residence in a particular state. The bankruptcy must be filed in the state where the person has had domicile or residence for the longer portion of the 180 days leading up to filing.
Here’s how that works. Suppose the debtor came from Wyoming to Utah for temporary work. He moved into an apartment in Utah on September 1. By December 1 he decides he needs to file bankruptcy. He still considers himself to be a resident of Wyoming, but he lives in Utah. In other words, his domicile is in Utah. Where does he file, Utah or Wyoming?
Under the 180-day test, this person would file in Utah because his domicile has been in Utah for the longer portion (91 days) of the 180-day period leading up to December 1. This is true even though he is still a resident of Wyoming. If he had decided to file bankruptcy on November 15, he would have filed in Wyoming because he had been a resident of Wyoming for the longer portion of the 180 days leading up to November 15 than he had been domiciled in Utah.
If you’ve moved within the six months before filing bankruptcy, you must take these rules into consideration in determining the right state in which to file.
If you have bankruptcy questions, please contact us here, or call or text (801) 413-3708, or email firstname.lastname@example.org.