Posted on Feb 10, 2014

United States Attorney General Eric Holder announced today that among other things, the U.S. Justice Department will not oppose same-sex married couples filing bankruptcy together, in what is called a "joint filing." This can save couples from having to file two separate bankruptcy cases, requiring two separate filing fees and two separate attorney fees.

The announcement was made at the Human Rights Campaign Greater New York Gala. The remarks concerning bankruptcy were:

In bankruptcy cases, the United States Trustee Program will take the position that same-sex married couples should be treated in the same manner as opposite-sex married couples.  This means that, among other things, same-sex married couples should be eligible to file for bankruptcy jointly, that certain debts to same-sex spouses or former spouses should be excepted from discharge, and that domestic support obligations should include debts, such as alimony, owed to a former same-sex spouse.

This is all positive, except for one thing that I can think of: it makes the so-called "means test" apply to same-sex married couples. So if only one spouse files, and the couple is married and living together, the non-filing spouse's income must be counted in the "means test," which may disqualify some individuals from filing chapter 7.

Also, in the context of a chapter 13 filing, it could mean that the filing spouse must pay more to their unsecured creditors, than they would otherwise. However, if it means being treated equally in all other respects under federal law, I would think that the advantages far outweigth these minor disadvantages.

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J Thomas Black
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Board Certified, Consumer Bankruptcy Law- Texas Board of Legal Specialization