Can a gay couple legally married file bankruptcy? 20 Answers as of October 07, 2013

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?

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Law Office of William Stoddard | William 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.
Answer Applies to: Washington
Replied: 10/7/2013
Davis Law SC | D. Nathan Davis
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.
Answer Applies to: South Carolina
Replied: 10/4/2013
Indianapolis Bankruptcy Law Office of Eric C. Lewis
Indianapolis Bankruptcy Law Office of Eric C. Lewis | Eric Lewis
Not sure but I think with the invalidation of DOMA the answer is now yes.
Answer Applies to: Indiana
Replied: 10/2/2013
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
Yes and if the clerk gives you grief let me know.
Answer Applies to: California
Replied: 10/2/2013
Michael B. McFarland, P.A. | Michael B. McFarland
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.
Answer Applies to: Idaho
Replied: 10/1/2013
    Chung & Press, LLC
    Chung & Press, LLC | Brett Weiss
    Generally speaking, the answer should be yes. Some states' treatment of same-sex marriage, such as Virginia, could potentially cause issues, however. Take care.
    Answer Applies to: Maryland
    Replied: 9/30/2013
    Law Office of Jeffrey Solomon
    Law Office of Jeffrey Solomon | Jeffrey Solomon
    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.
    Answer Applies to: Florida
    Replied: 9/30/2013
    Idaho Bankruptcy Law | Paul Ross
    Yes, if legally filed you may file bankruptcy.
    Answer Applies to: Idaho
    Replied: 9/30/2013
    Elkington Law
    Elkington Law | Sally Elkington
    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.
    Answer Applies to: California
    Replied: 9/30/2013
    The Law Offices of Deborah Ann Stencel | Deborah A. Stencel
    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.
    Answer Applies to: Wisconsin
    Replied: 10/1/2013
    Law Offices of David A. Tilem | Michael Avanesian
    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.
    Answer Applies to: California
    Replied: 9/30/2013
    The Law Office of Darren Aronow, PC
    The Law Office of Darren Aronow, PC | Darren Aronow
    That is an area of law that is not fully explored yet so you may find yourself litigating. I suppose a state that does not recognize gay marriage may not accept the application for bankruptcy.
    Answer Applies to: New York
    Replied: 9/30/2013
    Law Office of J. Thomas Black, P.C.
    Law Office of J. Thomas Black, P.C. | J. Thomas Black
    Yes, a same sex couple that is legally married can file a joint bankruptcy petition. This is true as of June 26, 2013, the date of the U.S. Supreme Court's decision in Windsor v. United States, which struck down Section 3 of the Defense of Marriage Act (DOMA). However, you must be legally married. If you are not, you cannot file a joint bankruptcy petition.
    Answer Applies to: Texas
    Replied: 9/30/2013
    Law Offices of Patrick Edaburn | Patrick Edaburn
    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.
    Answer Applies to: California
    Replied: 9/30/2013
    Danville Law Group | Scott Jordan
    Yes, if you are in California, or any state that recognizes same-sex marriage, you can file together.
    Answer Applies to: California
    Replied: 9/30/2013
    Law Offices of Linda Rose Fessler | Linda Fessler
    Since bankruptcy is a federal matter you should not have any problems. If the state you are moving to gives you a difficult time, my first reaction would be to sue them. If you do not want to be bothered with that, you could each file separately. It would be a little more expensive ( a second filing fee if you were doing it yourself). If you were hiring an attorney he might give you a better rate on his/her services since it would not take much additional effort to do them separately.
    Answer Applies to: California
    Replied: 9/30/2013
    Deborah F Bowinski, Attorney & Counselor at Law | Debby 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.
    Answer Applies to: Colorado
    Replied: 9/30/2013
    The Law Offices of Kristy Qiu
    The Law Offices of Kristy Qiu | Mengjun Qiu
    In states that recognize same sex marriage maybe. In states where same sex marriage has not been legalized no.
    Answer Applies to: Florida
    Replied: 9/30/2013
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    No reason you can't as the federal government recognizes your marriage and bankruptcy is a federal proceeding.
    Answer Applies to: Nevada
    Replied: 9/30/2013
    Stuart P Gelberg
    Stuart P Gelberg | Stuart P Gelberg
    Yes! I've already filed one with no issues.
    Answer Applies to: New York
    Replied: 9/30/2013
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