Same Sex Marriages and Bankruptcy in Oklahoma

On June 26, 2013, the United States Supreme Court invalidated portions of the Defense of Marriage Act (DOMA) which provides federal benefits to legally married gay couples. United States v. Windsor (2013). The Supreme Court found that prohibiting same sex marriages is a violation of the Fifth Amendment. In doing so, the federal government is now required to recognize legally married gay couples. This may include the right to file "joint" bankruptcy petitions under chapter 7 and 13 under the Bankruptcy Code. In order to be legally married, a couple must be married in a country to recognizes gay marriages or in one of the following states that allow gay marriages: California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire New York, Rhode Island, Vermont, and Washington (with more states to follow).

UPDATED 2014: SAME SEX COUPLES ARE NOW ALLOWED TO FILE JOINT BANKRUPTCY PETITIONS IN THE OKLAHOMA BANKRUPTCY COURTS

Under Section 302 of the Bankruptcy Code, for joint cases are "commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be debtor under such chapter and the individual's spouse." However, the legislative history shows that a joint case is a voluntary case between wife and husband. However, with the recent Supreme Court decision finding DOMA unconstitutional, some same sex married couples are able to file joint bankruptcy petitions (in states where same sex marriages are recognized.

At this time, it is unclear whether states that do not recognize same sex marriage will allow same sex married couples to file joint bankruptcy petitions. Most likely, it will depend on the guidance issued by the Executive Office for U.S. Trustees on how same sex marriages will be handled. At this time, it is unclear whether the bankruptcy courts in the State of Oklahoma will allow same sex married couples to file a joint bankruptcy petition. In Oklahoma, bankruptcy filers use our state law exemptions to determine what property they are able to maintain post bankruptcy. As such, it is unclear how these exemptions will apply to married same sex couples and will take some time to sort out.

We will keep you posted as we receive any guidance from the U.S. Trustee's office in Oklahoma. Please keep in mind that individuals in the LGBT community still have the right to file bankruptcy individually. Please feel free to call us at (405) 702-7795 for any further questions or concerns

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Author: Tai Stevenson

Attorney at Law

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Debt Solution Law Center serves clients in the cities of Oklahoma City, Edmond, Moore, Norman, Yukon, Midwest City, Del City, Lawton, Tulsa, Muskogee, El Reno, Purcell, Broken Arrow, Shawnee, and Ardmore, including Oklahoma County, Cleveland County, Canadian County, Pottowatomie County, Lincoln County, McClain County, Grady County, Logan County, and Noble County, Oklahoma.