About Me
“ Craig D. Robins, Esq., has been a practicing Long Island bankruptcy attorney for over twenty-four years ”
Written by Craig D. Robins, Esq. and Ian RibaldCalifornia’s Supreme Court decision this past week, upholding the ban against same-sex marriage in that state, has been very controversial.
Now that same-sex marriage is again headlining the news, some are questioning whether a same-sex married couple may file a joint personal bankruptcy petition. Bankruptcy law provides that only a married couple may file a joint bankruptcy petition.
Currently, only Massachusetts, Connecticut, Iowa, Vermont (as of September 1, 2009) and Maine (as of September 14, 2009) have recognized same-sex marriage. This acknowledgment should allow a same-sex couple to file a joint bankruptcy petition with their spouse in these states only.
Can Gay Married Couples, Who Were Married in Another State, File Joint Bankruptcy Petitions in New York Bankruptcy Courts?
A major concern for many same-sex married couples is whether their marriage would be recognized by states that do not allow same sex marriage. Can a same-sex married couple that was married in another state, and then moves to New York, file for joint bankruptcy relief in New York, or would the couple have to file individual bankruptcy petitions?
A major concern for many same-sex married couples is whether their marriage would be recognized by states that do not allow same sex marriage. Can a same-sex married couple that was married in another state, and then moves to New York, file for joint bankruptcy relief in New York, or would the couple have to file individual bankruptcy petitions?
Pursuant to the Defense against Marriage Act, a state is not required to recognize a same-sex marriage in their state even though they were legitimately married in another state. However, on May 29, 2008, New York Governor David Paterson issued a directive requiring that all state agencies recognize same-sex marriages performed in other jurisdictions.
As a result of Governor Paterson’s directive, New York became the first state that does not allow same-sex marriages, but whose state agencies recognize same-sex marriages performed elsewhere.
Does that change things as far as a bankruptcy filing is concerned?
The fact that New York state agencies will recognize the marriage does not necessarily mean that a federal bankruptcy court in New York will.
Accordingly, there is currently an issue as to whether gay couples, who are New York residents, and who were married in other states, can file a joint personal bankruptcy in this state. I would argue that they can because the federal law must defer to particular state law as far as recognizing the validity of a marriage. However, this has not been tested here in New York as far as I know.
I’ll Consider Providing Free Bankruptcy Representation to a Same-Sex Married Couple
If you are New York same-sex couple, properly married in another state, that needs to file for Chapter 7 bankruptcy relief, I would consider representing you free, on a pro-bono basis, to test the waters and set a precedent.
.
Note: Ian Ribald is a summer intern with our firm. He recently finished his second year of law at Touro Law School.
