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Is The Judgment Debtor a Nevada Resident with a Valid Nevada Homestead

Posted by: on Fri, Jan 09, 2015

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Determining if Judgment Debtor is a Nevada resident requires proof of a variety of different factors

 

Generally. “Domicile” refers to your primary residence. The term is often used interchangeably with “residence”, but the term “legal residence” is closer. You may have several residence or places where you reside, but, in the United States, it is well accepted law that you
may only have one domicile or one legal residence.

 

If you make Nevada your “domicile”, it does not mean that Nevada is your exclusive place of residence, but it generally refers to the place that you reside most of the time or, at least, more than anywhere else during any given calendar year.

 

Each state has its own rules for establishing
residency or domicile. In Nevada, and presumably in many other states, there
are different definitions for different purposes, such as for filing a
complaint for divorce, for voter registration, and in-state tuition and a state
college or university.  It is possible for more than one state to assert
that you are domiciled in that state. If you want to avoid being classified as
a resident or domiciliary of another state, it is important to understand that
state’s laws. Those laws can be quite complex, particularly if they relate to
business and taxation. It may be necessary to follow procedures to formally
abandon your former domicile.

 

Nevada Supreme Court

 

In the case of Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445, the Nevada
Supreme court held: “It is our judgment that the residence required by
the statute and contemplated by the session act was actual residence;
that is, physical, corporeal presence, and not alone legal residence
or domicile.”…. The court then explained that “Legal residence
consists of fact and intention combined; both must concur, and, when one’s legal
residence is fixed, it requires both fact and intention to change it.”

 

In Williams v. Clark County Dist. Attorney , Supreme Court of Nevada, July 25,
2002118 Nev. 47350 P.3d 53639897, the court in an election campaign dispute,
explained that:

…In other words, if a candidate with more
than one permanent habitation can simply choose which habitation is the “actual
residence” for purposes of candidacy, without any consideration of legal
domicile, then the requirement of legal domicile, within
the definition of actual residence, ceases to exist….

…  As previously stated, a person can have
but one legal domicile, and cannot simply “declare” this legal
domicile, because it, by definition, depends on permanency and intent.

 

Nevada Statutory Law

281.050. Residence for purposes of eligibility for office is actual residence;  determination of residence;  vacancy in office upon certain changes in residence

NV ST 281.050West’s Nevada Revised Statutes Annotated; Title 23. Public Officers and Employees (Chapters 281-289)

…A person may have an actual residence
in one place and a legal residence in another, and a person may
have several actual residences, but a person may have only one legal
residence or domicile….

…Statute providing that if a
person absents himself from the jurisdiction of his residence with the
intention in good faith to return without delay and continue his residence,
the period of absence must not be considered in determining the question of residence,
only applied when determining legal domicile, not actual residency
for purposes of eligibility to stand as candidate for mayoral election…

Florida Statute as example:

The
legal language from the Florida legislature defines a Permanent Residence as
the following:

 

“Permanent   Residence”……….. means the place where a person has his or her true,
fixed and permanent home and principal establishment to which, whenever
absent, he or she has the intention of returning. A person may have
only one permanent residence at a time*; and, once a permanent
residence is established, it is presumed to continue until he or she
shows that a change has occurred.
Florida Statute, Section 196.012(18)

 

 

California Statutes

In determining residency for homestead purposes, courts consider (1) physical
occupancy of the property and (2) the intention with which the property is
occupied. In re Bruton, (BC SD CA 1994)167 BR 923, 926. The judgment debtor,
must live in the residence at the time the judgment is recorded and at the time
of the execution of the judgment or else the exemption will not apply. (Cal.
Code of Civ. Proc. § 704.720.)

 

DUAL RESIDENCY

If two states each determine that an individual is a “resident” (domiciliary or
statutory resident) subject to tax, that individual may be subject to
double taxation of his or her income. This situation can occur when an
individual attempts to change his domicile unsuccessfully, or when an
individual owns a residence in another state and time in the other state
now exceeds the minimum statutory threshold of days to subject that individual
to tax as a statutory resident.

 

Nevada Homestead Exemption

The Nevada Homestead Exemption protects up to $550,000 of the equity in your home. As long as your equity doesn’t exceed $550,000, no creditor mark can sell your home to recover a debt, and no bankruptcy trustee can include your home in the bankruptcy estate. The
Nevada Homestead Exemption protects debtors’ homes from consumer debts only. It
will not protect your home from seizure for delinquent alimony, delinquent
child support, mechanic’s liens, liens for unpaid taxes or debts secured by a
deed of trust or mortgage. Regardless of how much equity you have, judgments
for these types of debts may result in the sale of your home. Additionally, if
the property was purchased with fraudulently procured funds, some case law
recognizes the right of the plaintiff to recover against the home in spite of
the homestead.

The Nevada Homestead Exemption protects debtors’ homes from consumer debts only. It will not protect your home from seizure for delinquent alimony, delinquent child support, mechanic’s liens, liens for unpaid taxes or debts secured by a deed of trust or mortgage.
Regardless of how much equity you have, judgments for these types of debts may
result in the sale of your home.

A homestead declaration will not prevent your home from being sold to pay a
judgment for:

 Taxes

 A mortgage, trust deed or other loan arrangement used to purchase or refinance your
property or improvements to your property.

 A mechanic’s lien or other obligation to pay because of improvements made to your property.

 Any lien to which you agree (consensual).

INDICIA OF DOMICILE 

Physical Presence. Under Nevada law, the legal definition of domicile includes actual physical presence combined with an intent to remain indefinitely. You cannot be a Nevada resident unless you are here at least some of the time. If you leave, you must have the intent to return. Generally the legal residence of a person is in Nevada if the person has been physically present within the State during the period for which residency is claimed. Legal residence starts on the
day that such actual physical presence begins. Sometimes the more important
question is how does a person become a nonresident of his former state?

How can I change my residency to Nevada?

The simple answer is you need to move here. You will have to abandon your
domicile in California or elsewhere and establish domicile in Nevada. If you
maintain multiple residences, you have to make Nevada your principal place of
residence, your primary home.

Do I have to move to Nevada permanently?

In order to considered a nonresident of your former state you must generally
establish that your intent to leave your former state was for other than a
temporary or transitory purpose. If your absence is temporary you will
generally continue to be considered a resident of your former state.

Key Elements the court may consider:

While physical presence is a major element in establishing your domicile, proof of domicile also includes a number of key elements that are looked at as indicia of domicile, which include doing the following — or at least most of the following — in Nevada:

(a) Moving into a home, condominium, or apartment with the furniture, furnishings, and possessions that indicate an intent to make this your primary residence;

(b) Filing an declaration of domicile with the county clerk;

(c) Registering to vote;

(d) Registering your vehicles;

(e) Obtaining a driver’s license;

(f) Recording an executed homestead declaration with respect to your primary Nevada residence with the county recorder;

(g) Using your Nevada address for state and federal tax purposes and filing a change of address with the IRS and other tax authorities on the prescribed form(s);

(h) Using your Nevada address for primary correspondence, including credit cards, magazines, bank accounts, etc. and filing a change-of-address form with the U.S. Postal Service;

(i) Transferring significant cash and securities holdings to Nevada institutions;

(j) Using — but not necessarily exclusively — one or more Nevada advisors, such as a Nevada attorney or accountant;

(k) Having your trust and/or will updated to reflect your Nevada residency and to reflect Nevada law; and

(l) Establishing memberships in civic, religious, and community organizations.

Declaration of Domicile. Nevada law permits a person to declare that Nevada is his or her domicile residence by signing “a sworn statement showing that he resides in and maintains a residence in that county, which he recognizes and intends to maintain as his permanent home.”

 

CONCLUSION

To be a Nevada resident essentially requires that you be here for a majority of the time with the intent to remain here.

If it is important that other states consider you as a Nevada resident, the more “indicia of domicile” that point to Nevada, the more likely you are to be successful.

 

Warning:

 Declaring yourself a resident or domiciliary of a state is not enough. You actually have to spend more time living here than you live anywhere else. If a couple spends nine
months a year in California and three months a year in Nevada, they are
California residents even if they have done most of the things mentioned above
that would show that they are Nevada residents.

Most people who are not bona fide residents of Nevada leave a paper trail (with receipts for purchases such as gas, food, and living expenses) and an electronic trail (with things such as cell-phone calls and ATM withdrawals) that is evidence of their real domicile.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.  Our firm’s practice includes a strong emphasis on construction law, contracts and litigation in the jurisdictions where we are licensed.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services.  Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation.  Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.