1. Identify the State whose law is applicable
First you must identify the state whose law “is applicable on the date of the filing of the
petition.” 11 USC § 522(b)(1)(3)(A). To identify that state, determine whether there is a
“730-day state,” i.e., a state in which debtor has been continuously domiciled for 730-
days immediately preceding the date of filing. If such a state exists, it is the state whose
law is applicable.
If there is no “730-day state,” you must next determine whether there is a “180-day state,” i.
e., a state in which debtor has been domiciled for the longer portion of the 180 days
immediately preceding the 730 days than in any other state. If there is a “180-day state,” it
is the state whose law is applicable. If there is no “180-day state,” then there is no state
whose law is applicable. In that case, refer to XXXXXXt.
Beware. The 730-day and 180-day tests require domicile, not residence. Debtor must
have been domiciled in a state for the entire 730-days or for at least some time during the
preceding 180-day period or there is no state of applicable law.
Domicile is established by physical presence in a place with intent to remain there for an
unlimited or indefinite period of time. Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, (1989); Freeman v. Northwest Acceptance Corp., 754 F.2d 553 (5th Cir.
1985). A person has only one domicile at a particular time, even though he may have
several residences. Williamson v. Osenton, 232 U.S. 619 (1914). In re Sparfven, 265 B.R.
506, 518–19 (Bankr.D.Mass.2001) (“when a person has more than one residence, intent
is particularly relevant”). Some factors considered in establishing domicile include: (1)
current residence; (2) voting registration and voting practices; (3) location of spouse and
family; (4) location of personal or real property; (5) location of brokerage and bank
accounts; (6) memberships in churches, clubs, unions and other organizations; (7)
location of a person's physician, lawyer, accountant, dentist and stockbroker; (8) place of
employment or business; (9) driver's license and automobile registration; and (10)
payment of taxes. In re Stone, 329 B.R. 860 (N.D.Iowa 2005).
It is quite possible for a person to have resided in a state for 730-days and not be
domiciled there. REFER TO THE FLORIDA CASE?? Debtor's attorneys should keep this
in mind because it may be advantageous for the debtor to be without a domicile and
therefore be able to use the federal exemptions. REFER TO
In these situations there is no state of applicable law:
1. Debtor has resided in one state for several years but has always intended to return to
the state where he grew up and where is family is located.
2. Debtor has been domiciled in a state for a year prior to filing bankruptcy but was not
domiciled in any state for the preceding two years.
3. Debtor is a not a citizen and (get Florida case)
Should you next select the state from the list of states? Probably so, because you have to
know whether that state requires domicile or residency or neither.
Add determine whether debtor is a resident
2. Select the State of Applicable Law from the List of States