Same Sex Marriage and Joint Bankruptcy Filings

The Defense of Marriage Act (DOMA), 1 U.S.C. section 7, defines a married couple as consisting only of opposite sex married couples.

Generally, married couples will file joint bankruptcy petitions; a joint filing saves a filing fee and often a second attorney’s fee. The Justice Department (through the U.S. Trustee) had routinely intervened to stop joint bankruptcy cases filed by same-sex couples because Section 302(a) of the bankruptcy code allows a joint bankruptcy case to be filed only by debtors who are legally married,

California’s Supreme Court’s recent decision to legalize same-sex marriage has resulted in challenges to the filing requirements under the bankruptcy law.

The United States Bankruptcy Court for the Central District of California (the nation’s largest bankruptcy court) in the case of In re Balas and Morales has now decided that the Defense of Marriage Act as applied to a same-sex couple legally married under state law, violated the couple’s equal protection rights afforded under the Fifth Amendment of the United States Constitution.

A New York bankruptcy court has likewise ruled that a same sex married couple can file a joint bankruptcy case, just the same as a heterosexual married couple, regardless of the existence of the federal Defense of Marriage Act.  These cases are the first instances where U.S. bankruptcy courts have approved the filing of joint bankruptcy petitions by same sex married couples.

DOMA has come under increasing pressure since the Obama administration said in February that it would no longer defend its constitutionality, a significant change in Justice Department policy.

It now appears that same sex couples married under state law are entitled to the same filing benefits as are generally available to married heterosexual couples.



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