Same-Sex Bankruptcy Joint Filings Upheld By Three Different Courts.

On behalf of Bankruptcy Law Firm of Clare Casas on Tuesday, July 5, 2011.

May and June, 2011 were monumental months in the fight for gay and lesbian equal rights. In landmark decisions, three different bankruptcy courts denied U.S. Trustee motions to dismiss the cases of same-sex couples that were married and filing joint bankruptcy petitions.

A New York bankruptcy court ruled that a same sex married couple can file a joint bankruptcy case, just the same as a heterosexual married couple, regardless of the existence of the federal Defense of Marriage Act. This case, In re Somers and Caggiano, No. 10-38296 (Bky.S.D.N.Y. May 4, 2011), and the rulings in In re Balas and Morales, No. 2:11-bk-17831 (Bky.C.D.Cal, June 13, 2011), and In re Ziviello-Howell, No. 11-22706 (Bky.E.D.Cal. May 31, 2011), are the first instances where U.S. bankruptcy courts have approved the filing of joint bankruptcy petitions by same sex married couples.

In re Somers and Caggiano, the court was not persuaded by the U.S. Trustee’s argument that the Defense of Marriage Act (DOMA) mandated dismissal of the case. The court noted that the U.S. Attorney General had announced in a letter dated February 23, 2011, to House Speaker John Boehner, that the Justice Department would no longer defend DOMA in federal court proceedings because of constitutional concerns.

Although these three cases show a trend that bankruptcy courts appear to be refusing to dismiss joint filings by same-sex couples that are legally married — as of the publishing of this blog, it is not known if anyone has tested the waters in Florida yet. Time will eventually tell us what becomes of DOMA and joint filings by same-sex couples in Florida. Bankruptcy judges are not required to follow the legal findings of similarly seated bankruptcy judges in other districts. Although those decisions can be cited to in cases here, they are not precedent that our judges must follow.

This is an issue of great importance to same-sex couples everywhere and one that we will be following closely as it winds its way through bankruptcy courts across the U.S. Stay tuned!