Filing Joint Bankruptcy
The Bankruptcy Code is divided into chapters, all of which (except for Chapter 12) are odd-numbered (give me a call and I’ll tell you why). Chapters 1, 3, and 5 serve as foundational chapters: their content comes along for the ride and is subsumed into any bankruptcy you file. Thus, for example, if you file for either Chapter 7, or Chapter 13, relief, you are simultaneously filing under Chapters 1, 3, and 5.
Individual cases under any chapter are therefore filed pursuant to 11 U.S.C. § 301, and joint cases are filed pursuant to 11 U.S.C. § 302(a), which provides in relevant part (with emphasis added): “A joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse.” Therefore, according to this Code section, any two people who are not married to each other cannot jointly file for bankruptcy protection. They can, of course, file two separate bankruptcies as individuals, but in so doing they incur twice the cost of filing a single bankruptcy.
II. The Defense Of Marriage Act
For reasons connection with the aforementioned “much larger controversy”, on September 21, 1996 President Clinton signed the Defense of Marriage Act (“DOMA”), which states (with emphasis added):
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
1 U.S.C. § 7.
Applying this statute to the restrictive language in 11 U.S.C. § 302(a) – which is part of the Bankruptcy Code, which is an act of Congress – leads to the conclusions that: (1) For federal law purposes (the Bankruptcy Code is federal law) same-sex couples cannot be considered married, and (2) same-sex couples cannot file for bankruptcy protection jointly.
If, on the one hand, DOMA does not conflict with the U.S. Constitution, then it is constitutional – even if it conflicts with the constitution of one (or more) of the states (see U.S. Const., art. VI.). If that is the case, then a same-sex couple can never file for bankruptcy protection jointly because they can never be married for federal law purposes, and can never have a spouse – again, for federal law purposes – even if they have been legally married under the law of one of the states.
On the other hand, if DOMA does conflict with the U.S. Constitution, then it is unconstitutional – even if it is popular. If that is the case, then it is arguably the case that a same-sex couple who is legally married under the laws of a given state can file jointly.