Federalism Policy and Choice-of-Law Concerns The essential question that is left following Windsor is a choice-of-law problem: C argues that same-sex couples filing jointly must, at a minimum, be able to use the federal exemptions of 11 U. In addition, these same-sex couples should be able to use, at the minimum, the allowable federal exemptions, as long as the couple is lawfully married in a state that recognizes such unions. An unmarried couple will need to file separate cases regardless of age, height, star sign, or gender. The Code does not, in 11 U. It all depends on the kind of income, debts, and assets you have. This summer, the Supreme Court is expected to decide Obergefell v.
The impact of Windsor 5Windsor, S. Furthermore, this rule ensures balance between state and federal law because it does not allow federal law to be unfairly and disjunctively applied on a state-by-state basis but instead allows every citizen to avail themselves of federal processes and laws. While this is good news in terms of equal protection, it may be both a blessing and a curse under bankruptcy law. Trustee in the case of Gene Balas and Carlos Morales, a legally married gay couple. Therefore, it is whether they have debts in their own name, or have joint debts, and assets. Read on to see how California law applies bankruptcy law to these situations and then reach out to California Bankruptcy Relief at for a free bankruptcy consultation. Call today to get started. The federal and state balance would remain while allowing same-sex couples the ability to file jointly for bankruptcy. That comes out to more than , people throughout the country. If there is a lot of debt in the family, and people are getting divorced, they might consider filing a joint bankruptcy. Section 3 [of DOMA] changes nothing; it simply reaffirms existing law. If an act does not have a legitimate purpose rationally related to the act, the Court would find that the law is unconstitutional under the Due Process Clause and Equal Protection Clause. Allen In re Allen , B. Singer, Section of the Bankruptcy Code: But it does take away an advantage — perhaps an unfair one — that same-sex married couples would have under the means test if their marriage is not recognized for federal bankruptcy purposes. It might be in their best interests. Rev discussing the history of DOMA and its effect on homosexuals. The problem is when they are in the middle of a divorce, and one-person files bankruptcy, it could have an impact on the divorce itself. There has been some argument that Congress, under either the Spending Clause or the Commerce Clause, may be able to define marriage and spouse because of the economic ramifications that these definitions may have on interstate commerce or federal taxation. By allowing this consolidation, the bankruptcy system reflected more clearly the reality of marital relations as it concerns debt and property ownership. Under federalism principles, the Bankruptcy Code should apply the definitions of marriage and spouse from the state of celebration to provide same-sex couples equal access to the federal bankruptcy system. Nor could it do so. However, under the federalism framework offered by this Article, a state that does not recognize same-sex marriage should not have to allow same-sex couples filing jointly in that state to take advantage of its bankruptcy exemptions. The task of balancing tradition, fundamental rights, and federalism is as old as the Republic and will remain relevant in a bankruptcy context no matter how the Court rules in Obergefell. So if a state does not recognize same-sex marriages within its borders that state would not have to offer to a jointly filing couple the exemptions that are offered to a heterosexual couple. Fixing this variation in state policies into the Code, in contrast, forces same-sex couples who wish to file jointly and want to utilize federal exemptions to move to a different state so that the domicile requirement of 11 U. Given the expansive language of 1 U.
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Can Same Sex Marriage Partners File A Bankruptcy?
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