The bankruptcy court avoided a judgment creditor’s lien that impaired the debtor’s homestead exemption. The creditor focused on two main arguments: (1) that the debtor had abandoned the home when he moved out after a marital separation, and (2) that even though the debtor moved back in after his wife and children moved out, he could not reestablish it as his homestead because he did not reside there with his family at that time.

The court found that although the debtor lived in other locations after his marital separation, he did not abandon or intend to abandon his homestead rights in the family home:

Abandonment must be “total, without any occupancy under claim of homestead.” Dennis v. Omaha Nat’l Bank, 28 N.W. 512, 514–15 (Neb. 1886) (emphasis added). The debtor or [his wife] always resided in their family home. They remained married at the time the bankruptcy was filed. The debtor’s absence from the home beginning in 2023 was due to a marital dispute and divorce filing, it being agreed as in the best interest of the debtor’s children, who also resided there. Even if he spent nights or resided at his girlfriend’s apartment, the debtor returned to his home after [his wife] moved out. Although the debtor and [his wife] agreed to sell the house and obtained a court order to list it for sale, the house is not sold. The debtor’s rental of a house with his girlfriend was temporary, regardless of whether he remains liable on the lease. The debtor’s personal property has always been at his home. And [his wife] did not testify she intended to abandon the home or her homestead rights.

In response to the creditor’s second argument, the court pointed out the Nebraska homestead exemption statute no longer focuses on protecting the family home. Rather, recent amendments to Neb. Rev. Stat. § 40-101 allow any natural person to claim a $120,000 exemption in their home. “The debtor is a natural person. He lives in his home. He claimed it as exempt. As a result of the amendment, it is not necessary the debtor’s wife or children live with the debtor after March 2025.”

Because the total amount of the judicial lien and consensual liens on the property plus the homestead exemption, less the value of the debtor’s one-half interest in the property, impair the debtor’s claimed exemption, the judicial lien is avoided in full.