In cases where a married couple has incurred joint debt, a bankruptcy filing by only one spouse will not negate the obligation of the non-filing spouse to pay back the couple’s debts. Even after one spouse has declared bankruptcy, creditors can still come after the other nonbankrupt spouse for joint debts. As a result, it is often necessary for married couples to file bankruptcy jointly. Section 302 of the Bankruptcy Code authorizes ”spouses” to file joint petitions, although the Code does not define the term spouse. Absent a specific definition of the term spouse, the Code seems to limit the availability of joint petitions to those who are legally married. Five states now recognize same sex marriage (Connecticut, Iowa, Massachussetts, New Hampshire and Vermont). Can gay couples file joint bankruptcy cases in those jurisdictions?

In light of the Defense of Marriage Act (“DOMA”), the answer is likely no. Traditionally, the definition and regulation of marriage was an issue properly left to the states under our federalist system of government and the 10th amendment. As an unfortunate example, due to the anti-miscegenation laws, interracial marriage was illegal in some states prior to 1967.  In 1996, through DOMA, Congress broke with tradition and specifically defined marriage as a union of one man and one woman for the purpose of federal law. As a federal body of law, the Bankruptcy Code borrows its definition of the term spouse from DOMA. As a result, section 302 of the Bankruptcy Code must be read to allow joint petitions only on behalf of heterosexual couples.

In In re Kunda, 315 B.R. 123 (Bankr. W.D. Wash. 2004), a gay couple, legally married in British Columbia, challenged the constitutionality of DOMA after their attempt to file a joint bankruptcy petition was denied. Despite the argument that DOMA is an improper use of federal power that infringes upon a state’s right to regulate marriage, the Court rejected constitutional challenges on the grounds that DOMA’s definition of marriage applies only to federal law, and therefore does not interfere with a a state’s ability to simultaneously define and regulate marriage. The court reasoned that the federal government can permissibly maintain its own definition of marriage so long as state legislatures are afforded the same corresponding right. If conflicting definitions of “spouse” and “marriage” result, they can constitutionally co-exist when states retain their right to regulate marriage as well. Under the current state of the law, DOMA defines the term spouse for purposes of section 302 of the Bankruptcy Code. Like it or not, gay couples, even if legally married in their state, do not fit the federal definition and are therefore not eligible to file joint bankruptcy petitions.

John O’Connor