Know your rights regarding your home

Exemptions used in a bankruptcy case are a blend of both state and federal law. This seems strange if you look at the fact that the Constitution of the United States reserved the right to establish bankruptcy laws solely to the Federal Government. Because of political pressures, where you live at the time of filing and where you lived for two and one-half years before you filed your case can cause there to be significant differences in what property you may lose and the property you may retain.

 Most exemption schemes will treat the real property that you call home more favorably than other real estate that you may use as rental property. If you are able to use South Carolina exemptions and you own or are buying your home, you can exempt equity in your home.

 An exemption does not protect your property against some types of liens. A lien that you put on your property such as a mortgage and do so voluntarily will not be affected by an exemption. An exemption will stop or slow down a judgment creditor.

 Now you know why the creditor wants a mortgage on your home when he wants collateral. A judgment is behind the exemption, a mortgage before the exemption. This applies whether you are in Charleston or Summerville.

 The amount of the exemption for a South Carolina debtor is $53,375.00. This can be doubled if two people who are on title live in the house. The wording in the South Carolina Code of Laws 15-41-30(A)(1) limits the total exemption that may be claimed to no more than twice the exemption, no matter how many persons are on title and use the property as a home.

 Financial issues cause a great deal of strain on a couples relationship. Many times a husband and wife have separated and one is not living in the home. If there is a judgment against the spouse who is not living in the home, can the spouse claim the exemption?

 There have not been any reported cases in South Carolina covering this situation, but, this will have to be addressed by a South Carolina court at some point.

About Nathan Davis, Esquire

Born in Charleston, South Carolina, Nathan Davis has been practicing law for many years. Mr. Davis has a wide variety of experiences having practiced domestic relations, criminal law, social security law having also practiced collection law in the past. This knowledge is helpful when someone needs to restart their financial life. The practice is now primarily bankruptcy and debtor representation work, but, Mr. Davis continues to also practice real estate law, trusts and estates and a general litigation practice. I believe that the most important part of representation is trying to leave you better off when the case is finished than when you started. Although I will do as my client directs, I will always tell you if I think that you are making a mistake. Bankruptcy is about a "fresh start". If you do not make changes in what you are doing, you will be doing what you are doing now in the future. There is no shame in bankruptcy or other steps that you may take to start your life over. Too often, people worry more about things than about themselves, their family or their future.
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