Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.
In the last two months, there have been three bankruptcy rulings that same-sex couples can file joint bankruptcies. I reported on one from California, but there is another, In re Somers and Caggiano, in New York that recognized an out-of-state (Vermont) same-sex marriage under New York law. These courts are looking to create equality under the law by allowing same-sex couples married under their state's law to have the same rights as heterosexual couples. The question is, has that been accomplished by those rulings?  Before you answer, here are a couple of points to consider.

First, these rulings only allow for joint filings in states that have legalized same-sex marriage (Connecticut, Iowa, Massachusetts, New Hampshire, Washington DC and Vermont) or recognize those that are legal in other jurisdictions (New York, Rhode Island and Maryland). Thus this is only an issue in 8 of the 50 states plus DC (16% of the states). Joint filing is still denied in all other federal districts. Since there is no same-sex marriage under federal law (in fact there is federal law to the contrary under the Defense of Marriage Act or DOMA) there is no consistency across the nation. Some gay couples can file jointly, and others cannot.

Second, same sex couples actually get an advantage over heterosexual couples in means testing. Married couples must disclose joint income, even though only one of them is filing. This is not true of the gay couple residing in a state without same-sex marriage. The filing debtor need only disclose his/her income, which can make it much easier to file a chapter 7 if the combined income is over that state's median.

So what do you think? Do these rulings accomplish what they set out to do? Or have they simply created more efficiency in the administering of one bankruptcy instead of two? Post your comments below.
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