Many people have wondered, now that the Defense of Marriage Act (DOMA) has been held unconstitutional by the United States Supreme Court, can a same-sex married couple file a joint bankruptcy petition?
The short answer is a resounding YES. The victory in United States v. Windsor argued before the U.S. Supreme Court means that all loving and committed same-sex couples deserve equal legal respect and treatment from the federal government that traditional couples have enjoyed.
Prior to the overturn of DOMA, same-sex married couples were not permitted to file a joint bankruptcy. This meant that same-sex couples had to file separate cases, one for each spouse, in order to accomplish the same goal that traditional couples could in one jointly filed case. To some degree, this constituted discrimination of the same-sex couple since separate cases meant more filing fees, more attorney fees, and in Chapter 13 cases, more plan payments.
Since the overturn of DOMA, however, things have changed. Because of the Full Faith and Credit Clause (Article IV, Section 1 of the U.S. Constitution), each state must recognize legislative acts, public records, and judicial decisions of the other states within the United States. Therefore, many courts across the nation now recognize the right of same-sex couples, even if their own states don’t necessarily respect their marriage. This means that a same-sex couple married in New York, Connecticut, California, or other states that allow same-sex marriage can now file bankruptcy jointly in their home state that does not allow same sex marriage (Florida, for example).
Aside from bankruptcy, a U.S. Citizen or permanent resident married to a foreigner of the same sex can now petition the alien spouse through the same means that traditional couples have employed for decades.
To find out more about rights afforded to same-sex couples in either bankruptcy or immigration, please feel free to contact Kristy Qiu, a Fort Lauderdale Bankruptcy Attorney.