Bankruptcy After DOMA

Most of us are aware that on June 26, 2013, the United States Supreme Court decided United States v. Windsor, a landmark case holding that Section 3 of the Defense of Marriage Act (DOMA) may not be constitutionally applied to same-sex married couples whose marriages are legally recognized under state law.  133 S. Ct. 2675 (2013).  But, what has not been as well publicized is how the Court’s decision in DOMA impacts a same-sex couple’s ability to file joint petitions in bankruptcy.

 

Although some bankruptcy courts, even before Windsor, had ruled DOMA unconstitutional, recognizing same-sex joint filings, others were reluctant to address the issue and in many cases, the United States Trustee’s program challenged joint filings based upon the definition of marriage provided in DOMA.  Now that DOMA has been struck down, however, it seems clear that all bankruptcy courts must apply the provisions of the United States Bankruptcy Code to same-sex spouses just as they would apply them to opposite-sex spouses.

 

In fact, even the Department of Justice recently provided guidance to United States Trustee Program personnel, advising them that the terms “spouse,” “marriage,” and “husband and wife” as contained within the United States Bankruptcy Code, should be interpreted to refer to individuals who were legally married to a person of the same sex in a state that recognizes such marriages, even if they are domiciled in a state that does not recognize the marriage. Since federal law gives an individual or a married couple a right to file bankruptcy, now that the definition of marriage contained in DOMA has been repealed, there should not be any barrier to married same-sex couples filing a joint bankruptcy petition.

 

Approaching the anniversary of the Windsor decision, what continues to remain unclear, however, is how the specific laws of states which discriminatorily exclude recognition of same-sex couples will apply to joint filings by married same-sex couples.  Bankruptcy is a fusion of federal and state law, with state law governing property rights and exemptions.  As such, in states like Florida, which do not recognize same-sex marriages, it remains possible that even with a same-sex couple’s joint bankruptcy filing being recognized, the couple may find themselves unable to avail themselves of the very protections that the Bankruptcy Code was intended to bestow.

 

In addition, the treatment Windsor has afforded lawfully married same-sex couples in the bankruptcy context has not yet been recognized to extend to individuals in a formal relationship, which is not denominated a “marriage” under the laws of the state, such as a domestic partnership or civil union.

 

Needless to say, while a major battle may have been won with Windsor, much ground is still to be tread in applying its principles, and ensuring equal rights under the law.

Jamie Blucher

Jamie Blucher has a diverse practice at ZKS. As a bankruptcy associate, Jamie’s focus is on creditors’ rights.She represents creditors and trustees in bankruptcy cases as well as adversary proceedings and appeals to the United States Court of Appeals for the Eleventh Circuit.

Jamie also represents financial institutions, banks, insurance companies, construction contractors, business owners and other corporate clients in commercial litigation. Jamie’s experience in commercial litigation includes commercial foreclosures, residential foreclosures, debt collection, construction disputes, and general breach of contract actions.

A portion of Jamie’s time is likewise devoted to pro bono legal representation.Her pro bono activities include representing abused and neglected children in juvenile court through the Orange County Bar Association's Guardian ad Litem program and serving as a volunteer attorney through the Legal Aid Society.In recognition for the exceptional degree of service she provides to the most vulnerable members of the Central Florida Community, Jamie has received Certificates of Appreciation and is a recipient of the Young Lawyer Pro Bono Award of Excellence.

Latest posts by Jamie Blucher (see all)

About Jamie Blucher

Jamie Blucher has a diverse practice at ZKS. As a bankruptcy associate, Jamie’s focus is on creditors’ rights. She represents creditors and trustees in bankruptcy cases as well as adversary proceedings and appeals to the United States Court of Appeals for the Eleventh Circuit.

Jamie also represents financial institutions, banks, insurance companies, construction contractors, business owners and other corporate clients in commercial litigation. Jamie’s experience in commercial litigation includes commercial foreclosures, residential foreclosures, debt collection, construction disputes, and general breach of contract actions.

A portion of Jamie’s time is likewise devoted to pro bono legal representation. Her pro bono activities include representing abused and neglected children in juvenile court through the Orange County Bar Association's Guardian ad Litem program and serving as a volunteer attorney through the Legal Aid Society. In recognition for the exceptional degree of service she provides to the most vulnerable members of the Central Florida Community, Jamie has received Certificates of Appreciation and is a recipient of the Young Lawyer Pro Bono Award of Excellence.
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