Gay and Lesbian Issues In Bankruptcy
Same-sex couples face a dual standard in just about every area of life and an imbalance of legal rights exists around every corner for members of the gay, lesbian, bisexual and transgender ("GLBT") community.. Bankruptcy, unfortunately, is no different. All of the bankruptcy laws were written with the conventional family in mind.
Although some courts are just beginning to deal with the issue of married same-sex couples and bankruptcy, this area of law is far from settled. This doesn't mean that gay or lesbian partners in committed relationships can't file for bankruptcy - it simply means that your bankruptcy lawyer must fully understand the scenario and prepare the bankruptcy petition accordingly.
This office represents gay and lesbian clients in Chapter 7 and Chapter 13 bankruptcy proceedings with pride and professionalism. The issues that arise in this area are usually similar to those of "conventional" families, but the answers are not always as clear.
Can a same-sex couple file a bankruptcy petition together?
The bankruptcy laws treat everyone the same in this category. Unmarried couples (straight or gay) cannot file a joint bankruptcy petition. Even if you've been together for a bunch of years and have adopted Yorkies together - the answer is the same. You must be legally married to file a joint petition. So of course, that brings up the next logical question....
What about a same-sex couple that got married in another state?
Now, we're going into unchartered territory. In recent years, a handful of states have recognized and allowed same-sex marriage. In response, a boatload of states have passed legislation stating that same-sex marriages will not be recognized in their state. Florida is one of the states that refuses to recognize the marriages of gay and lesbian citizens.
To simplify federal law: normally, legal contracts that you enter into in other states (such as marriage - let's not forget that it's a legal contract - not a religious one) must be recognized in the state that you live in. The 1996 Defense against Marriage Act is a federal law that says a state is not required to recognize a same-sex marriage in their state even if the couple was legitimately married in another state.
Bankruptcy laws are federal laws - not state laws. Bankruptcy doesn't address the issue of same-sex marriage and when a federal law doesn't address an issue directly, then we look to state law to fill the gap. Florida law does not recognize same-sex marriages so we're left at the answer to the first question. Can a same-sex married couple file a joint bankruptcy petition...the answer is no.
Is the Means Test calculated differently when it's a same-sex couple?
There is no difference in the calculation of the means test because a client is in a same-sex partnership. It's really no different than how we calculate for two people who live together and share expenses (roommates or partners - straight or gay).
Is the income of a same-sex partner included on the means test?
On the means test, only the income of a filer's spouse is required to be listed. Since we've already learned that bankruptcy laws are not recognizing same-sex marriages or domestic partnerships as spouses, then the only income listed is that of the person filing bankruptcy. The best way to include the income for a domestic partner is to figure out how much of a contribution the partner is making to the household per month and include that amount as a regular monthly contribution.
How do I get more information on this issue?
Bankruptcy lawyer, Orfelia Mayor is available to meet with you on these and any other questions you may have regarding bankruptcy if you are in a gay or straight domestic partnership. Our office is conveniently located close to Wilton Manors, Pembroke Pines, Miramar, Weston, Cooper City, Hollywood and most of the cities in Broward County. Whether gay, lesbian, bisexual or transgender ("GLBT") you will find a warm reception, complete acceptance and the ability to be yourself...with pride.
Although some courts are just beginning to deal with the issue of married same-sex couples and bankruptcy, this area of law is far from settled. This doesn't mean that gay or lesbian partners in committed relationships can't file for bankruptcy - it simply means that your bankruptcy lawyer must fully understand the scenario and prepare the bankruptcy petition accordingly.
This office represents gay and lesbian clients in Chapter 7 and Chapter 13 bankruptcy proceedings with pride and professionalism. The issues that arise in this area are usually similar to those of "conventional" families, but the answers are not always as clear.
Can a same-sex couple file a bankruptcy petition together?
The bankruptcy laws treat everyone the same in this category. Unmarried couples (straight or gay) cannot file a joint bankruptcy petition. Even if you've been together for a bunch of years and have adopted Yorkies together - the answer is the same. You must be legally married to file a joint petition. So of course, that brings up the next logical question....
What about a same-sex couple that got married in another state?
Now, we're going into unchartered territory. In recent years, a handful of states have recognized and allowed same-sex marriage. In response, a boatload of states have passed legislation stating that same-sex marriages will not be recognized in their state. Florida is one of the states that refuses to recognize the marriages of gay and lesbian citizens.
To simplify federal law: normally, legal contracts that you enter into in other states (such as marriage - let's not forget that it's a legal contract - not a religious one) must be recognized in the state that you live in. The 1996 Defense against Marriage Act is a federal law that says a state is not required to recognize a same-sex marriage in their state even if the couple was legitimately married in another state.
Bankruptcy laws are federal laws - not state laws. Bankruptcy doesn't address the issue of same-sex marriage and when a federal law doesn't address an issue directly, then we look to state law to fill the gap. Florida law does not recognize same-sex marriages so we're left at the answer to the first question. Can a same-sex married couple file a joint bankruptcy petition...the answer is no.
Is the Means Test calculated differently when it's a same-sex couple?
There is no difference in the calculation of the means test because a client is in a same-sex partnership. It's really no different than how we calculate for two people who live together and share expenses (roommates or partners - straight or gay).
Is the income of a same-sex partner included on the means test?
On the means test, only the income of a filer's spouse is required to be listed. Since we've already learned that bankruptcy laws are not recognizing same-sex marriages or domestic partnerships as spouses, then the only income listed is that of the person filing bankruptcy. The best way to include the income for a domestic partner is to figure out how much of a contribution the partner is making to the household per month and include that amount as a regular monthly contribution.
How do I get more information on this issue?
Bankruptcy lawyer, Orfelia Mayor is available to meet with you on these and any other questions you may have regarding bankruptcy if you are in a gay or straight domestic partnership. Our office is conveniently located close to Wilton Manors, Pembroke Pines, Miramar, Weston, Cooper City, Hollywood and most of the cities in Broward County. Whether gay, lesbian, bisexual or transgender ("GLBT") you will find a warm reception, complete acceptance and the ability to be yourself...with pride.