NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

MICHELE LYNN MCKEE,

Debtor.

BAP No. CC-22-1042-GTS

Bk. No. 6:21-bk-10679-SY

MEMORANDUM*

MICHELE LYNN MCKEE,

Appellant,

v.

KARL T. ANDERSON, Chapter 7 

Trustee; LAURA O’KANE; CORRINE 

LONG,

Appellees.

Appeal from the United States Bankruptcy Court

for the Central District of California

Scott Ho Yun, Bankruptcy Judge, Presiding

Before: GAN, TAYLOR, and SPRAKER, Bankruptcy Judges.

Memorandum by Judge Gan

Concurrence by Judge Taylor

* This disposition is not appropriate for publication. Although it may be cited for 

whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential 

value, see 9th Cir. BAP Rule 8024-1.

FILED

NOV 18 2022

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
2

INTRODUCTION

Chapter 71 debtor Michele Lynn McKee (“Debtor”) appeals the 

bankruptcy court’s order sustaining an objection to Debtor’s homestead 

exemption filed by chapter 7 trustee Karl T. Anderson (“Trustee”) and 

partially sustaining an objection filed by creditors Laura O’Kane and 

Corrine Long. After an evidentiary hearing, the court concluded that 

Debtor could not claim the California automatic homestead exemption 

because, on the petition date, she did not physically occupy the property in 

question, and she did not have an intent to return to the property.

On appeal, Debtor argues that she is entitled to the homestead 

exemption under California law because it was impossible for her to safely 

return to the property due to emotional abuse and physical intimidation by 

her former life partner and co-owner O’Kane. We acknowledge that Debtor 

made decisions during a difficult situation. But the bankruptcy court 

correctly applied California law, and its factual findings—that Debtor 

made an economic decision to relinquish her interest in the property and 

did not demonstrate an intent to reside there—are not clearly erroneous. 

Accordingly, we AFFIRM.

1 Unless specified otherwise, all chapter and section references are to the 

Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all “Rule” references are to the Federal 

Rules of Bankruptcy Procedure.
3

FACTS

A. Prepetition Events

Debtor and O’Kane began a romantic relationship in late 2003 and 

began living together in 2004. In approximately 2009 they began working 

together as law partners in a firm called O’Kane & McKee, LLP (“O&M”). 

In 2010, Debtor and O’Kane purchased a lot and built a home on Bella Cara 

Way in Palm Springs, California (“Bella Cara”), which they finished in

2015. Debtor and O’Kane each owned one third of Bella Cara, and O’Kane’s 

mother, Corrine Long, owned the remaining third.

In late September 2016, Debtor ended the personal relationship with 

O’Kane and a few months later she moved out of Bella Cara. Debtor

initially rented a furnished house, and since February 2018, she has 

continuously lived in a rented condominium on Via Sonoma in Palm 

Springs (“Via Sonoma”). She changed her driver’s license and voter’s 

registration to reflect her address at Via Sonoma.

After the relationship ended, Debtor and O’Kane began discussions 

about dividing their jointly owned assets. The discussions culminated in an 

October 2017 written agreement (the “Agreement”), which provided for a 

division of personal property and titled vehicles, and a process to dissolve 

O&M. The Agreement further provided that the parties would sell jointly 

owned real property located in Oakland, California, and divide the net 

proceeds.
4

Regarding Bella Cara, the Agreement stated that Debtor would 

receive a “payout” of her interest based on her net equity under a 

hypothetical sale. The parties also agreed that Debtor would retain her onethird interest in proceeds from pending construction defect litigation.

Pursuant to the Agreement, Debtor agreed to return her keys to Bella Cara 

and O’Kane agreed to be responsible for all taxes, insurance, and mortgage 

payments for Bella Cara after April 1, 2017.

The Agreement required Debtor to complete billing for an O&M 

matter (the “Robinson Matter”) and obtain client approval for the invoice 

by December 1, 2017, and it provided she would receive her payout within 

30 days of doing so.2 The Agreement specified that if Debtor failed to 

complete the billing and obtain approval on the Robinson Matter by 

December 1, 2017, her payout would be reduced, and if she did not 

complete the billing by December 31, 2017, she would essentially forfeit her 

interest in Bella Cara.

Debtor asserts that she completed the billing on the Robinson Matter

by December 1, 2017, but O’Kane refused to approve her time. O’Kane 

maintains that Debtor did not complete the billing on the Robinson Matter 

until September 2018 and consequently forfeited her interest in Bella Cara. 

2 The Robinson Matter involved O&M’s representation of Jason Robinson in a 

probate case between 2014 and 2017. In May 2017, the state court approved a settlement 

agreement which provided for payment of $270,000 to O&M for attorney’s fees.
5

O’Kane did not pay Debtor under the Agreement, and the handling of the 

Robinson Matter is part of ongoing litigation to dissolve O&M.

B. The Bankruptcy and Exemption Objections

In February 2021, Debtor filed her chapter 7 petition. She listed her 

one-third interest in Bella Cara in Schedule A/B and claimed the California 

automatic homestead exemption under California Code of Civil Procedure 

(“CCP”) § 704.730.

O’Kane and Long objected to Debtor’s homestead exemption, 

arguing: (1) Debtor forfeited her interest in Bella Cara pursuant to the 

Agreement, and it was not property of the estate; and (2) Debtor admitted 

that on the petition date she resided at Via Sonoma and had not lived at 

Bella Cara since 2018.

Trustee also objected to Debtor’s homestead exemption and partially 

joined O’Kane and Long’s objection. Trustee argued that Debtor’s interest 

in Bella Cara was property of the estate, but because Debtor admitted that 

she did not physically occupy Bella Cara on the petition date, and she was 

unable to demonstrate the requisite intent to live there, she was not entitled 

to the exemption. Trustee disputed the validity of the Agreement, but 

asserted that even if it was effective, it did not operate to disclaim Debtor’s 

interest in Bella Cara. And regardless of the validity of the Agreement, it 

clearly demonstrated Debtor’s intent not to reside at Bella Cara after 

October 2017.
6

Debtor responded to the objections and argued: (1) her interest in 

Bella Cara was property of the estate because it was O’Kane, not Debtor, 

who breached the Agreement, and even if Debtor breached it, O’Kane 

would have at most a claim for breach of contract; and (2) notwithstanding 

her lack of physical occupancy, she was entitled to claim the homestead 

exemption because she had a continuous intent to reside at Bella Cara. 

Debtor contended that although she and O’Kane were not married, they 

cohabited as life partners, and she should be entitled to the protection of

CCP § 704.720(d). That statute allows a debtor who no longer resides in a 

homestead to retain the exemption when her “separated or former spouse 

continues to reside in or exercise control over possession of the 

homestead.”

She further argued that the Agreement did not support a conclusion 

that she was abandoning her homestead; it merely demonstrated that she 

knew it was unsafe to return to Bella Cara, and she was doing what she 

could to amicably obtain her interest in the property and reinvest it 

elsewhere. Debtor claimed that her “involuntary absence” from Bella Cara 

did not constitute abandonment because, under the Agreement, she was 

supposed to receive the value of her interest within a short period of time.

Debtor filed a supplement to her opposition in which she argued that 

she did not abandon her homestead under California law because she was 

forced from Bella Cara by O’Kane’s verbal abuse and physical intimidation. 

She asserted that, but for the abuse, she would still be living there.
7

The bankruptcy court set an evidentiary hearing on the objections. At 

the hearing, Debtor testified that O’Kane had been abusive “on multiple 

levels” throughout the relationship and became “very nasty” after Debtor 

ended the relationship. Debtor stated that after the breakup, she feared for 

her safety when O’Kane pushed her into the laundry room and would not 

let her leave. Three former employees of O&M all testified that they 

witnessed several instances of O’Kane yelling at Debtor and forcing her 

way into Debtor’s office.

Debtor testified that after she moved out of Bella Cara, she intended 

that her interest in the property be “bought out” by O’Kane. She stated that 

she had no choice because she could no longer live at Bella Cara. Debtor 

testified that after the couple broke up, she wanted to stay at Bella Cara 

until it was sold but had to leave because of O’Kane’s behavior. Debtor 

asked about the status of the buyout many times, and in 2018 she emailed 

O’Kane, accusing her of delaying the process to avoid paying the buyout. 

Debtor indicated that she intended to return to Bella Cara only if O’Kane 

agreed to vacate the property, but she had no expectation that O’Kane 

would ever leave.

At the conclusion of the evidentiary hearing, the bankruptcy court 

requested written closing arguments to address whether Debtor’s intent to 

buy a new home with the proceeds from her interest in Bella Cara was 

sufficient to claim the homestead exemption under California law when 

she was unable to return to living at the property, and whether Debtor’s 
8

intent to reside at Bella Cara should be measured by an objective or 

subjective standard. The parties submitted their written arguments, and the 

court subsequently entered its oral ruling on the record.

The court reserved judgment on whether Debtor forfeited her interest 

in Bella Cara because Trustee had a separate pending adversary 

proceeding which involved the validity and effect of the Agreement. The 

court ruled that, although Debtor had an intent to retain her monetary 

interest in Bella Cara, she did not have an intent to reside there. It reasoned 

that whether Debtor had the requisite intent to return to the property 

required an objective test, and it noted that apart from Debtor’s statement 

that she would return if O’Kane left, all other evidence indicated that 

Debtor’s goal was to take proceeds from her interest in Bella Cara to buy a 

new house.

The court also rejected Debtor’s argument to apply CCP § 704.720(d) 

because she and O’Kane were not married, and the statute could not be 

extended to non-spouses. The court entered a written order disallowing 

Debtor’s homestead exemption, and Debtor timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 

157(b)(2)(B). We have jurisdiction under 28 U.S.C. § 158.
9

ISSUE

Did the bankruptcy court err by finding that Debtor did not satisfy 

the residency requirement for the California automatic homestead 

exemption?

STANDARD OF REVIEW

A debtor’s right to claim an exemption is a question of law we review 

de novo, and we review the bankruptcy court’s factual findings, including 

a debtor’s intent, for clear error. Elliott v. Weil (In re Elliott), 523 B.R. 188, 191 

(9th Cir. BAP 2014) (citing Kelley v. Locke (In re Kelley), 300 B.R. 11, 16 (9th 

Cir. BAP 2003)).

Factual findings are clearly erroneous if they are illogical, 

implausible, or without support in the record. Retz v. Samson (In re Retz), 

606 F.3d 1189, 1196 (9th Cir. 2010). “Where there are two permissible views 

of the evidence, the factfinder’s choice between them cannot be clearly 

erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

DISCUSSION

A. Legal Standards Governing the California Automatic Homestead 

Exemption

California has opted out of the federal exemption scheme and 

permits its debtors only the exemptions allowable under state law. CCP 

§ 703.130. As a result, “[t]he bankruptcy court decides the merits of state 

exemptions, but the validity of the exemption is controlled by California 

law.” Diaz v. Kosmala (In re Diaz), 547 B.R. 329, 334 (9th Cir. BAP 2016).
10

Bankruptcy courts must liberally construe the law and facts to promote the 

beneficial purposes of the homestead exemption. Phillips v. Gilman, (In re 

Gilman), 887 F.3d 956, 964 (9th Cir. 2018) (citing Tarlesson v. Broadway 

Foreclosure Invs., LLC, 184 Cal. App. 4th 931, 936 (2010)).

In California, there are two types of homestead exemptions: a 

declared homestead exemption, which must be recorded by a party, and an 

automatic homestead exemption, which arises by operation of law when a 

party’s principal dwelling is subject to a forced sale. Bhangoo v. Engs Com. 

Fin. Co. (In re Bhangoo), 634 B.R. 80, 85 (9th Cir. BAP 2021). Debtor did not 

record a declared homestead exemption and instead claimed the automatic 

homestead exemption under CCP § 704.730. For purposes of the automatic 

homestead exemption, the filing of a bankruptcy petition constitutes a 

forced sale. In re Diaz, 547 B.R. at 334.

“Under California law, the party claiming the automatic homestead 

exemption has the burden of proof on the existence of the exemption.” In re 

Bhangoo, 634 B.R. at 85. Bankruptcy courts must apply the state law burden 

of proof on exemptions claimed under California law. See In re Diaz, 547 

B.R. at 337 (“[W]here a state law exemption statute specifically allocates the 

burden of proof to the debtor, Rule 4003(c) does not change that 

allocation.”).

“To determine whether a debtor resides in a property for homestead 

purposes, courts consider the debtor’s physical occupancy of the property 

and the intent to reside there.” In re Gilman, 887 F.3d at 965 (citing In re 
11

Diaz, 547 B.R. at 335; Ellsworth v. Marshall, 196 Cal. App. 2d 471, 474 (1961)).

A debtor who does not physically occupy a property on the petition date is 

not necessarily precluded from claiming the automatic homestead 

exemption. See e.g., In re Bhangoo, 634 B.R. at 86; In re Diaz, 547 B.R. at 334; 

McBeth v. Karr (In re Karr), BAP No. CC-06-1079-KMoSn, 2006 WL 6810996, 

at *4 (9th Cir. BAP Oct. 2, 2006).

The automatic homestead exemption may be available to a debtor 

temporarily absent from the principal dwelling on the petition date if the 

debtor can establish an intent to return to the homestead property after the 

absence. In re Bhangoo, 634 B.R. at 86; In re Diaz, 547 B.R. at 334. Debtor 

acknowledged that she did not physically occupy Bella Cara on the petition 

date. Thus, the automatic homestead exemption applies only if she could 

prove her intent to return to Bella Cara.

B. The Bankruptcy Court Properly Applied California Homestead 

Law.

Debtor argues that the bankruptcy court erred by disallowing her 

homestead exemption because she had the subjective intent to reinvest her 

interest in Bella Cara in a new residence, and she would have returned to 

Bella Cara if O’Kane had ever left the property. She contends that she did 

not abandon her homestead because she was forced to leave the property 

due to emotional abuse and physical intimidation, and it was impossible 

for her to return so long as O’Kane continued to reside there.
12

California courts have long held that a lack of physical occupancy 

does not necessarily preclude a party from claiming the homestead 

exemption. See In re Bhangoo, 634 B.R. at 86; In re Diaz, 547 B.R. at 335-36. 

And where a party does not physically occupy the property due to safety 

concerns, California courts have been notably lenient. See Michelman v. 

Frye, 238 Cal. App. 2d 698, 704 (1965) (upholding debtor’s declaration of 

homestead made while she was absent from the property due to threats of 

violence made by her husband who continued to reside there); Moss v. 

Warner, 10 Cal. 296, 297-98 (1858) (holding that “removal made under very 

just apprehensions for the safety of his family from the existing hostilities 

of the Indians in the vicinity” was not an abandonment of the homestead). 

Though we understand the plight of a debtor who must leave a 

homestead property due to safety concerns, and we liberally construe the 

law and facts to promote the beneficial purpose of the homestead 

exemption, we cannot obviate the residency requirement under California 

law. It is essential that a debtor who is temporarily absent on the petition 

date have an intent to reside in the property, even if the debtor was forced 

to leave due to dangerous conditions. See Michelman 238 Cal. App. 2d at 704

(“Absence from one’s permanent residence, if all the while he intends the 

absence only for a special temporary purpose to be followed by resumption 

of the former residence, constitutes neither abandonment thereof nor a 

change of residence. The question . . . must depend largely upon his 

intention.”) (cleaned up); Moss, 10 Cal. at 298 (“The residence of the family 
13

in San Diego [away from the homestead] was merely temporary. Their 

home was not there, and, of course, not their homestead. They were merely 

sojourners in the city.”).

We are unaware of any authority supporting a claim to the California 

automatic homestead exemption where the debtor does not demonstrate an 

intent to reside there. “[W]hether the debtor physically occupies the 

property or not, the debtor must have an intention to reside there.” In re 

Diaz, 547 B.R. at 336; see also In re Gilman, 887 F.3d at 966; Ellsworth, 196 Cal. 

App. 2d at 475 (“While the very purpose of the homestead law is to protect 

the property from existing debts, the declarant must have ‘a bona fide

intention to make the place his residence, his home.’” (quoting Lakas v. 

Archambault, 38 Cal. App. 365, 373 (1918)).

Consequently, the bankruptcy court correctly determined that the 

automatic homestead exemption required Debtor to demonstrate an intent 

to return to Bella Cara.

C. The Bankruptcy Court Did Not Clearly Err by Finding that Debtor 

Lacked the Intent to Return to Bella Cara.

Debtor contends that her subjective statement—that she would 

return to Bella Cara if O’Kane vacated the property—is sufficient to 

overcome objective evidence that she intended to abandon the homestead. 

Although a debtor’s intent to reside in a property involves a subjective 

state of mind, that subjective intent is typically demonstrated by objective 

manifestations. Debtor’s testimony about her intent is probative, but it is 
14

not necessarily dispositive. See Tromans v. Mahlman, 111 Cal. 646, 647 (1896) 

(“The physical fact of actual occupancy, as well as the intention with which 

she occupied the house, were both elements to be considered in 

determining actual residence; and the court was not bound to accept her 

statement that she intended to reside thereon as conclusive, if other 

facts . . . were inconsistent with such intention.”); see also, Nahman v. Jacks 

(In re Jacks); 266 B.R. 728, 742 (9th Cir. BAP 2001) (“[S]ubjective intent may 

be gleaned from objective factors.”); Carrillo v. Su (In re Su), 290 F.3d 1140, 

1146 n.6 (9th Cir. 2002).

In resolving questions of a temporary absence from a homestead, we 

have endorsed the “useful analysis” articulated by the bankruptcy court in 

In re Bruton, 167 B.R. 923, 926 (Bankr. S.D. Cal. 1994). See In re Bhangoo, 634 

B.R. at 89; In re Karr, 2006 WL 6810996, at *5. That analysis focuses on 

“whether the debtors demonstrated, rather than merely claimed, their 

intent to return to their home after the absence.” In re Karr, 2006 WL 

6810996, at *5. “In other words, courts should focus on what objective

evidence showed an intent to return.” In re Bhangoo, 634 B.R. at 89.

Here, the bankruptcy court considered Debtor’s testimony, but 

concluded that the objective evidence—including the Agreement and email 

exchanges between the parties—showed that Debtor never intended to 

return to Bella Cara and instead sought payment from O’Kane for her 

interest. The court reasoned:
15

[W]e have so much other evidence, especially written evidence, 

that indicates she had no intent to ever move back into the 

house. She wanted to sell it. She just wanted money. The only 

evidence that slightly supports her claim of homestead 

exemption is just her testimony, subjective belief that this is her 

homestead and she would get money out of this, since she 

wanted to buy a home.

Hr’g Tr. 16:16-23, Feb. 9, 2022.

Debtor clearly expected to be paid for her interest, but the record 

does not evidence an intent to return to Bella Cara. She changed her 

address on her driver’s license and voter registration, relinquished her keys 

and possession of Bella Cara, signed the Agreement which provided for 

her to receive payment for her interest, and had communications with 

O’Kane in which she continually asked for her buyout. And under the 

Agreement, Debtor ceased paying the mortgage, maintenance, taxes, and 

other expenses related to Bella Cara. 

Debtor argues that she signed the Agreement to preserve her 

homestead interest, not to abandon it. But the automatic homestead 

requires a debtor to reside in a property, not merely to retain an economic 

interest in it. The purpose of the Agreement was to divide the parties’ 

jointly held property interests. It was an economic transaction that 

provided for Debtor to leave Bella Cara and receive payment for her 

interest while O’Kane continued living there.

The bankruptcy court’s finding is supported by evidence in the 

record, and we do not substitute our judgment for that of the bankruptcy 
16

court. See Legal Serv. Bureau, Inc. v. Orange Cnty. Bail Bonds, Inc. (In re 

Orange Cnty. Bail Bonds, Inc.), 638 B.R. 137, 149 (9th Cir. BAP 2022). And 

“[w]here there are two permissible views of the evidence, the factfinder’s 

choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 

574. The bankruptcy court did not clearly err in finding that Debtor lacked 

the intent to return to Bella Cara, and it did not err in sustaining the 

objection to her homestead exemption.

D. CCP § 704.720(d) is Not Applicable to Debtor’s Situation.

Debtor asserts that under a liberal application of the homestead 

statutes required by California law we should treat her the same as a 

married spouse in the same situation who would otherwise be allowed the 

exemption under CCP § 704.720(d).3 She maintains that the California 

Legislature intended individuals forced to leave a homestead under similar 

circumstances be entitled to the homestead exemption without needing to 

prove their intent to return to the property.

3 CCP § 704.720(d) provides:

If a judgment debtor is not currently residing in the homestead, but his or her 

separated or former spouse continues to reside in or exercise control over possession of 

the homestead, that judgment debtor continues to be entitled to an exemption under 

this article until entry of judgment or other legally enforceable agreement dividing the 

community property between the judgment debtor and the separated or former spouse, 

or until a later time period as specified by court order. Nothing in this subdivision shall 

entitle the judgment debtor to more than one exempt homestead. Notwithstanding

subdivision (d) of Section 704.710, for purposes of this article, “spouse” may include a 

separated or former spouse consistent with this subdivision.
17

By enacting CCP § 704.720(d), the California Legislature chose to 

extend the homestead exemption to debtors not currently residing in the 

property only: (1) while that debtor’s separated or former spouse continues 

to reside in the property; and (2) until the community property is divided 

by judgment or enforceable agreement. Section 704.720(d) is inapplicable 

here; Debtor and O’Kane were not married, and Bella Cara was not 

community property. Liberally construing this provision does not permit 

us to extend the exemption beyond the express limitations of the statute. 

CONCLUSION

Based on the foregoing, we AFFIRM the bankruptcy court’s order 

sustaining Trustee’s objection to Debtor’s homestead exemption.

Concurrence begins on next page.
1

TAYLOR, Bankruptcy Judge:

I join with reluctance.

I agree that the California legislature limited application of C.C.P. § 

704.720(d) to a separated or former spouse. I recognize that this statute 

reflects a legislative recognition that the dissolution of a relationship 

frequently requires a termination of joint residence even where physical 

threat is not present; accordingly, it provides automatic protection of the 

homestead rights of a spouse who vacates the home. But we cannot expand 

the statute through judicial fiat to cover non-married persons. 

And I acknowledge that the bankruptcy judge's findings of fact as to 

Ms. McKee's state of mind are entitled to deference and evaluated under 

the clear error standard. Here the findings have sufficient, if far from overwhelming, support in the record. I must affirm. 

But I write separately because the focus of both the bankruptcy court 

decision and the memorandum from the Panel appear to me to 

inappropriately narrow the frame of inquiry when a domestic partner 

leaves a homestead and alleges that the departure is involuntary, 

expedient, or based on an actual risk of harm.

First, we cannot lightly deprive a person of a homestead against a 

background of alleged physical threat. California law has protected the 

homestead when the departure is involuntary and the result of a fear of 
2

physical harm for over a century. See Moss v. Warner, 10 Cal. 296, 297-98 

(1858); see also Michaelman v. Frye, 238 Cal. App. 268, 704 (1965).1

Here, the bankruptcy judge implicitly found that such threats were 

not the reason for the departure; he found, in effect, that it was a business 

decision. The record supports this conclusion: Ms. McKee owned only a 

third of the home – the remainder was owned by her former domestic 

partner and her former domestic partner's mother; the agreement involved 

a broader separation of assets, including dissolution of a law partnership; 

the agreement allowed for a total loss of Ms. McKee's interest in the home's 

proceeds if she did not perform certain law office related tasks; Ms. McKee 

was absolved from responsibility for all costs in connection with the home; 

and Ms. McKee neither retained her homestead rights in the document nor 

discussed the homestead otherwise when she entered into the transaction. 

That Ms. McKee is a lawyer is also supportive of her relinquishment of a 

homestead. Again, on this record, I affirm even though I might reach a 

different conclusion were the case tried to me.

But in the absence of factors supporting such a business basis for the 

departure from the home, I would reverse. And I would do so even if the 

1 I emphasize that there was no judicial finding substantiating Ms. McKee's allegations 

of violence as to Ms. O'Kane. I concur to express concerns as to future cases involving a 

substantiated threat of harm or any situation where one domestic partner co-owner 

makes the decision that they can no longer live in a jointly owned home without a risk 

to physical safety, emotional health, or general well-being or where the removal from 

the home is coerced or otherwise involuntary as a result of the termination of the 

relationship.
3

facts do not support a conclusion that the departure was not required to 

avoid physical harm. 

The fact that the co-owner vacating possession rented another 

dwelling and acted as the law requires in changing an address on 

government documents should be given little or no weight when the 

departure from the jointly-owned home is merely-expedient, involuntary,

or coerced. And a well-evidenced desire to return only when or if a former 

domestic-partner departs should be sufficient where there is no exchange 

of valuable alternative consideration in exchange for vacating the home. 

Finally, the fact that the non-resident co-owner is deeply interested in 

receiving proceeds to use toward purchase of a new home typically should 

support a conclusion that the homestead rights are retained; the purpose of 

the homestead exemption is to keep a roof over a person's head. Where the 

nonresident party wants to use home proceeds for exactly this purpose and 

is not resident in the home because joint habitation is difficult, impossible, 

or dangerous, we should interpret the exemption statutes broadly and 

absent unusual facts determine that the homestead was not abandoned.

I acknowledge that the California cases to date focus on the intent to 

return to the dwelling. But we need not tie-on blinders and ignore that the 

shattering of a relationship injects tremendous complication into the 

scenario. I am confident that when the relationship between domestic 

partner co-owners terminates, the party who vacates the home need not 

intend to return in all circumstances to preserve the homestead. In short, I 
4

would find it sufficient for retention of the homestead, if such a person, to 

borrow from Moss, merely sojourns in another location until it is safe for 

body, mind, and spirit to return to the homestead. And, as a result, if the 

homestead is sold during this period of absence, I would allow the 

inadvertently absent co-owner to claim the proceeds free from creditor 

claims and to use them to acquire a safe place to live.