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.


About Nathan Davis, Esquire

Born in Charleston, South Carolina, Nathan Davis has been practicing law for many years. Mr. Davis has a wide variety of experiences having practiced domestic relations, criminal law, social security law having also practiced collection law in the past. This knowledge is helpful when someone needs to restart their financial life. The practice is now primarily bankruptcy and debtor representation work, but, Mr. Davis continues to also practice real estate law, trusts and estates and a general litigation practice. I believe that the most important part of representation is trying to leave you better off when the case is finished than when you started. Although I will do as my client directs, I will always tell you if I think that you are making a mistake. Bankruptcy is about a "fresh start". If you do not make changes in what you are doing, you will be doing what you are doing now in the future. There is no shame in bankruptcy or other steps that you may take to start your life over. Too often, people worry more about things than about themselves, their family or their future.
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