0
I WOULD LIKE TO KNOW THE WORDING THAT GOES INTO THE SPOUSAL WAIVER.
The "Spousal Waiver of 703.140b exemptions" that I am referring to in this answer is actually called the "Mutual waiver of right to claim state exemptions other than those provided in California Code of Civil Procedure 703.140(b), during pendency of bankruptcy case."
It is a document that is signed by married couples when one spouse wants to file bankruptcy in California individually (and not jointly with their spouse) and they want to use the 703.140b exemptions. (This waiver is certainly used in the southern district where I practice).
Exemptions are the things that allow you to keep property in a bankruptcy. Without exemptions your property would be taken and sold by the Trustee to satisfy your debts.
There are two sets of exemptions in California. One set is called the "non-bankruptcy exemptions" and this is the set that contains the homestead exemptions. These are listed under CCP (Code of Civil Procedure) 704.
If you don't own a home or if you don't have equity in your home then most people would choose the 703.140(b) exemptions when filing a bankruptcy because the 703 exemptions contain the very generous "wildcard" exemption.
The wildcard (modeled after the federal exemption statutes) allows you to keep any type of property at all (even cash) with a value up to approximately $20,000. (Check for the exact amount at the time you are considering filing bankruptcy).
The spousal waiver is necessary in California because both spouses must agree on which set of exemptions they will both take together. If they don't choose or if they can't agree on which exemptions they want then they get the non-bankruptcy 704 homestead exemptions by default. They would both then lose the wildcard.
By signing the Waiver both spouses waive their right to claim any state exemptions other than those provided in 703.140(b) during the pendency of their chapter 7 bankruptcy. That means that if they sign then the agree to use the 703 exemptions (wildcard) and they waive or give up their right to use the 704 homestead exemption.
In my experience most chapter 7 bankruptcy filers want this set of exemptions so most couples sign the document and they get their wildcard exemption which they must now share.
The wording of the waiver comes from CCP 703.140(a)(2) so check out that section of the law to see where it came from but the effect of it is as I described above.
For more bankruptcy information check out my website and my blog at www.farquharlaw.com.
Wiki User
∙ 13y ago
Add your answer:
Earn +20 pts
Can a spouse waiver spousal support by not enforcing a spousal support order?
No. The spousal support order remains in effect until it is modified by the court.
What is a spousal waiver for when purchasing a home?
Buying a house together indicates that the house would be marital property. A waiver signed before purchase means that either spouse is relinquishes any claim to the property, should the marriage end.
Is a waiver of spousal support enforceable in a Prenuptial Agreement enforceable under California law?
See the FAQ section at www.laprenuplawyer.com. Historically, waivers of spousal support were considered to be unenforceable in California. But in 2000 the California Supreme Court reexamined California's long-standing policy against such waivers of spousal support in In re Marriage of Pendleton & Fireman, 24 Cal.4th 39 (2000) . In that case, the Supreme Court found that when entered into voluntarily by people who are aware of the effect of the prenuptial agreement, a premarital waiver of spousal support does not offend contemporary public policy. In response to the Pendleton decision, the California Legislature promulgated new regulations that limit when modifications or waivers of spousal support in prenuptial agreements may be upheld. Section 1612 (c) of the Family Code now provides that any provision regarding spousal support, including a waiver, will be unenforceable if either party against whom enforcement is sought was: (1) unrepresented by independent counsel at the time the agreement was executed, or (2) if the provision is unconscionable at the time enforcement is sought. It is impossible to predict what circumstances might someday cause a Family Law judge to conclude that enforcing a spousal support waiver would be "unconscionable." While we can surmise with a high degree of certainty that if, after a 10-year marriage, one party is worth one billion dollars and the other party has no assets is unemployed, and is completely disabled, enforcement of a spousal support waiver would likely be deemed to be unconscionable. On the other hand, at the other extreme, we can say with equal confidence that if, after a one-year marriage, both parties have assets of equal value and comparable incomes, enforcement of a spousal support waiver in a prenuptial agreement would not be deemed to be unconscionable. Between these two extremes, we can only speculate where a Family Law judge might draw the line between "conscionability" and "unconscionability." Unfortunately, since Section 1612 of the Family Code was amended by the California legislature in 2002, there has been little case law that addresses under what circumstances a Family Law judge is likely to find a waiver of spousal support to be "unconscionable." Until a more developed body of case law emerges that addresses this important issue, it is impossible to predict under what sort of circumstances a provision in a prenuptial agreement dealing with (or waiving) spousal support is at risk of being struck down on the grounds that it is "unconscionable."
Can unemployment be garnished in Pennsylvania?
Under "Pennsylvania Exemption. and Non-Exemptions" in the Related Link below, unemployment benefits may not be garnished, except, like Social Security, for spousal/child support or taxes owed, etc.
What are the three types of judicial waiver?
judicial, prosecutorial waiver and legislative waiver
What is waiver in Tagalog?
Waiver in Tagalog is "pahintulot" or "pangwawalang-halaga."
What part of speech is waiver?
Waiver is a noun.
What is a visa waiver?
First of all, the term "waiver" comes up in Immigration law more than once and, in more than one case the term is related to a visa. Most commonly, "visa waiver" and "waiver of inadmissibility." There is a difference between a visa waiver and a waiver of inadmissibility. A visa waiver applies when a qualifying alien comes to the United States without formally applying for a waiver at a US consulate.
How can you get Slovenia pasport as a Nigeria citenzihp?
Naturalisation for aliens without exemptionsNaturalisation with exemptions for persons of Slovenia descentNaturalisation with exemptions for persons who previously had Slovenian citizenshipNaturalisation with exemptions for persons who are married to a Slovene citizenNaturalisation with exemptions for persons born in SloveniaNaturalisation with exemptions for refugeesNaturalisation with exemptions for persons without citizenshipMore on: http://www.mnz.gov.si/en/ - Ministry of Interior
Does a waiver excuse you from taking your drivers license test?
A waiver of WHAT?
How long does it take for marine medical waiver to be approved?
A waiver of WHAT ?
Are third party exemptions Froze?
Are third party exemptions froze?
