Can a same-sex married couple or two domestic partners file bankruptcy together as a married couple?
The Bankruptcy Code has provided since 1978 that a joint bankruptcy case can be filed by an individual who may be a debtor under chapter 7, 11, 12 or 13, and such individual debtor’s spouse. Joint cases promote the ease of administering what is essentially a single case for two different people, a recognition of the fact that the financial affairs of a husband and wife are intertwined. The debtors, creditors, attorneys, and clerk benefit from the time and cost savings of joint case administration. Married couples are not required to file together, but in some instances a joint filing is advantageous.
The federal Defense of Marriage Act (“DOMA”) provides that under federal law a “spouse” refers only to a person of the opposite sex who is a husband or a wife. A strict application of DOMA to the Bankruptcy Code would prevent a same-sex married couple or two domestic partners from filing a joint bankruptcy case, even though the rationale for a joint filing, the ease of administration due to intertwined finances, would seem to support a joint bankruptcy filing.
At the time of publication, there appear to be no reported cases from Virginia bankruptcy courts addressing whether a same-sex married couple or two domestic partners may file a joint bankruptcy case together. A bankruptcy court decision in Washington state, In re: Kandu, 315 B.R. 123 (Bkr. W.D. Wash., 2004) upheld the constitutionality of DOMA and ordered a dismissal of a joint case filed by a same sex couple who were married in British Columbia, Canada.