SAME SEX JOINT BANKRUPTCY FILINGS
Well, it had to come up sooner or later. A husband and wife may file a joint petition in bankruptcy, but, two persons who are not married may not file a joint bankruptcy. This issue comes up when a man and woman come into my office and want to file bankruptcy. Are they legally married so that they are entitled to file a joint bankruptcy. Filing together will cause the attorney’s fees that the couple would pay to be lower and the filing fees will also be less.
As a bankruptcy attorney, I have to determine if these people are married, either by a formal marriage or are considered common law married. The issue that is being considered in other Bankruptcy Districts is, may a same sex couple, who is legally married in some other state, entitled to file a joint petition in bankruptcy. This issue has not actually come to the District of South Carolina, but, this issue was recently addressed in the Central District of California. In the case of In re Gene Douglas Balas and Carlos A. Morales, the Bankruptcy Court ruled that a legally married, same sex couple had the same rights as any other legally married couple to file a joint bankruptcy petition.
I do not know what the impact of this case will be when a same sex couple who was legally married in a state that allows same sex marriage is in South Carolina and wants to file a joint bankruptcy petition. Even if South Carolina does not allow same sex marriages, this issue is going to come to the District of South Carolina. The laws of the state of South Carolina are subject to the United States Constitution. One of those provisions is that the laws of another state, are entitled to full faith and credit in South Carolina. If someone is married under New York law, is the District of South Carolina required to honor that law. New York has just authorized same sex marriages and it is simply a matter of time until a same sex couple wants to file bankruptcy together in the District of South Carolina.
No matter where you stand on the issue of same sex marriages, it cannot be long until the District of South Carolina must determine this issue.