In re Gomez

MEMORANDUM

When, if ever, may a debtor withdraw a spousal waiver under section 703.140(a)(2) of the California Code of Civil Procedure? •The answer is that a spousal waiver binds the debtor and the debtor’s non-filing spouse absent relief under Civil Rule 60(b) on a showing of mistake, inadvertence, surprise, or excusable neglect.

Facts

Amado L. Gomez (“Amado”) is married to Maria A. Lara (“Maria”). Represented by counsel, Amado — but not Maria — filed a chapter 7 bankruptcy petition. His assets included a residence valued at approximately $84,000. It is encumbered by a lien in the amount of $37,000. Amado claimed his residence exempt under section 704.730 of the California Code of Civil Procedure in the amount of $47,000.

On the petition date, Amado also filed the spousal waiver described by section 703.140(a)(2) of the California Code of Civil Procedure. Both Amado and Maria executed the waiver. By its terms, the waiver relinquishes Amado and Maria’s right during the present case from using the regular exemption scheme, i.e., California Code of Civil Procedure sections 704.010-704.995, and binds them during such period to the alternative exemption scheme, i.e., California…