QUESTION
Can a gay couple legally married file bankruptcy?
Asked on Sep 30th, 2013 on Bankruptcy - Colorado
More details to this question:
Can you file bankruptcy together as a same-sex married couple? We got married legally in one state, and are considering moving to a state with no gay marriage. Could we still file together?
13 ANSWERS
William M Stoddard
This one is difficult to answer. If the marriage between them has been filed with the State and the Supreme court ruling has basically stated the defense of marriage act is now moot, the federal government is now recognizing such relationships as protected in the states which allow for it. So in time the answer is probably, but I am not aware of it being done yet.
Answered on Oct 07th, 2013 at 5:23 AM
Bankruptcy Attorney serving Charleston, SC
at
Davis Law Firm
Update Your Profile
I think that this could get tricky if there are exemptions under state law that you want to use that are only available to married couples. If the state does not recognize the marriage, can you use the exemption? It is clear that under Federal Law, you can file a joint bankruptcy as this is a federal question. The law is still unsettled as to what exemptions you would be using. You need to contact an attorney for advice on this issue. It may be that you have no assets that you are exempting that require you to be married. A joint bankruptcy can only be filed by a married couple, but, there are two separate bankruptcy cases and it is sometimes necessary to either file separately or to separate a jointly filed bankruptcy to allow one of the parties to do something else.
Answered on Oct 04th, 2013 at 3:04 PM
Not sure but I think with the invalidation of DOMA the answer is now yes.
Answered on Oct 02nd, 2013 at 3:49 AM
General Practice Attorney serving Coeur d'Alene, ID
at
Michael B. McFarland, PA
Update Your Profile
In Idaho, which does not provide for same-sex marriages, the US Trustee (a federal officer) takes the position that, if you have been legally married in a state which does allow such marriages, you are eligible to file jointly here - assuming you meet the residency requirements. Bear in mind, though, that the exemptions may be determined by your prior residence until you have lived in your new home state for two years. You would be well-advised to consult with an experienced bankruptcy attorney before making a decision on when and where to file.
Answered on Oct 01st, 2013 at 1:29 PM
Chapter 7 Bankruptcy Attorney serving Milwaukee, WI
at
Law Offices of Deborah A. Stencel
Update Your Profile
If you are legally married, you would be likely be able to file a joint petition regardless of the state in which you file. Bankruptcy is federal law and the bankruptcy code does not limit joint filings to people to who are "straight-married." They simply must be married to one another. In 2011, the Department of Justice announced it would not oppose joint filings by same sex, married couples. However, you could possibly face opposition in a particular jurisdiction.
Answered on Oct 01st, 2013 at 4:33 AM
Yes, if you are legally married, you can file in any state whether they recognize your marriage or not. Bankruptcy falls under federal laws and since DOMA (Defense of Marriage Act) was struck down, your marriage is recognized under Federal Law.
Answered on Sep 30th, 2013 at 8:18 PM
bankruptcy Attorney serving Paul, ID
at
Paul N. J. Ross Law, PLLC
Update Your Profile
Yes, if legally filed you may file bankruptcy.
Answered on Sep 30th, 2013 at 8:05 PM
Commercial Bankruptcy Attorney serving Davie, FL
at
Law Office of Jeffrey Solomon
Update Your Profile
This is a question I recently faced but there is no clear answer. I was preparing to file a joint bankruptcy for a Florida couple who were validly married in another state. (It turned out that there was not enough debt for one spouse to need to file) Though Florida does not recognize same sex marriages, bankruptcy is a federal court proceeding. My gut feeling was that no one would object. (If an objection is made, then either the case could be separated into two cases, or a test case would need to be made). Finally, though a federal proceeding, many exemptions are based on state law which might not be exercisable by this married couple. (Florida recognizes tenancy by the entireties property for married couples). I have heard of cases where the joint case was filed without objection.
Answered on Sep 30th, 2013 at 7:57 PM
Generally speaking, the answer should be yes. Some states' treatment of same-sex marriage, such as Virginia, could potentially cause issues, however. Take care.
Answered on Sep 30th, 2013 at 7:56 PM
Personal Injury Attorney serving Glendale, CA
at
JT Legal Group
Update Your Profile
That's cutting edge law. In the central district of California, the general rule is that yes, you can. You absolutely need an attorney to guide you through the process because there are people who don't want to make it easy on homosexuals.
Answered on Sep 30th, 2013 at 4:23 PM
Litigation Attorney serving Stockton, CA
at
Patrick Jay Edaburn
Update Your Profile
You should be able to file if you are legally married though if you just moved you may also face residency issues in terms of where you should file Best to consult with an attorney on this to be sure.
Answered on Sep 30th, 2013 at 4:21 PM
No reason you can't as the federal government recognizes your marriage and bankruptcy is a federal proceeding.
Answered on Sep 30th, 2013 at 4:20 PM
Deborah F. Bowinski
Yes. Bankruptcy is Federal Law, and with the Supreme Court's ruling on DOMA it seems that under Federal Law all legally married couples are entitled to the same federal rights. I have not yet seen such a case filed (I live and practice in a state with civil unions but not yet gay marriage), but I believe it would have to be honored as a joint filing of two spouses.
Answered on Sep 30th, 2013 at 4:20 PM