Joint Bankruptcy Filing OK for Couples in Same Sex Marriage

February 10, 2014

Attorney General Eric Holder just officially announced that marital rights will extend to same sex marriage for the Justice Department, based upon some laws. He specifically mentioned benefit programs such as the 9/11 Victim Fund, litigation involving a married couple, federal prisoner rights, and the U.S. Trustee Program (bankruptcy).

At Reinherz Law, I have previously filed separate bankruptcies for same sex partners, causing extra work and costs, so this may be a big help in certain circumstances. To me, if the parties are within the same household it makes perfect sense to consider the total household income, assets, and debt as one unit. This could even hurt a same sex married couple in some instances that I can imagine, such as where one spouse has large debt, low income, and no assets, but the other party may have large income that might prevent the financially distressed spouse from filing a Chapter 7 bankruptcy.  So it could help or hurt in bankruptcy, depending on the circumstances, but seems to be a more realistic way to deal with the debt issues.

According o the article, the announcement was criticized by a conservative group as an infringement upon States’ rights.

Though it was not discussed in detail in most of the news articles that I saw, an underlying basic assumption is that the Same Sex Marriage itself had to have been legal. So if a couple got married legally, these rights should extend, maybe even if the current State they reside in does not legalize same sex marriage. Most of the articles also do not mention much about the Supreme Court ruling in June 2013 which overturned part of some prior law known as DOMA which previously outlawed recognition and benefits of same sex marriage.

Interestingly, as I understand it, the IRS already announced that joint tax filing were ok for couples who had legal same sex marriages, despite their current home state laws.

Here is the link to the article from February 2014: Same Sex Marriage Article

Here is the link to a June 2013 article about the Supreme Court ruling: Supreme Court DOMA Decision 2013

Here is a link to IRS Announcement from August 2013: IRS Note

No matter how you feel about some of these law changes and rulings, it is definitely interesting to see how the process plays out over time. The Defense of Marriage Act (DOMA) had pretty large bi-partisan support in the 1990s with discussions of morality, religion, and states’ rights.

By David Reinherz



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