Marriage equality is the rule for the time being in bankruptcy court. Currently I have been retained by one of a same sex married couple. She was concerned about what could be done about medical bills her partner had run up but can’t afford to pay. They were married in the District of Columbia which allows same sex marriage. They now live in Ohio which is a bit on the conservative side with one of the first anti gay marriage constitutional amendments.
At first blush you would think Ohio’s anti gay marriage constitutional provision would prohibit a same sex married couple from filing a joint bankruptcy. In other jurisdictions joint bankruptcy filings have been made for same sex married couples. The attorneys have taken a hold your breath and hope for the best stance. I needed to have a better answer than this, so I contacted the local office of the US Trustee.
Same Sex Married Couples Can File a Joint Bankruptcy
Here is what I discovered: There is an unwritten directive from Washington they are NOT to object to a joint bankruptcy case filed by a same sex married couple. This means that if you otherwise qualify for filing and discharge in bankruptcy your same sex marriage status will not be a problem for the time being. This information came from one of their staff trial attorneys. Directives do not have the force of law. Unwritten directives have even less authority.
You Need To Prove You Are Legally Married
We aren’t talking about true marriage equality here. You will have to prove:
- you both are legally married
- the marriage took place in a state where same sex marriage is legal
I have never had any other married couple have to prove they are married to have a joint bankruptcy filing, even if their last names were different. They just come to the creditor meeting and state under oath they are married. Not totally equal yet, but a huge step forward.
For my clients, we will give it a go. I will be adding the spouse to the petition for a joint filing.
I will report back.
PS: I originally reported back in a more recent blog post thinking that the world would see what happened. I learned in a recent call from a same sex couple that they only saw this article. In your honor, I am reporting the results here as well. Everything went according to plan. During the creditor meeting the chapter 7 trustee was taken a bit off guard when she realized that Bobbie was not a man. Otherwise all went as planned, the couple received a discharge, and at least for this moment in time there was equality.