Michael Rich

Document Type

Research Memorandum

Publication Date




The Bankruptcy Code states that a legally married couple may file a joint bankruptcy petition pursuant to section 302(a). However, this right to joint filing is narrowly limited to an “individual that may be a debtor under such chapter and such individual’s spouse.” Generally, courts have rejected joint filings under section 302(a) filed by debtors who are not legally married. For example, a parent and child cannot file a joint bankruptcy petition under section 302(a). Further, a couple that is living together without being legally married may not file a joint petition. The Bankruptcy Code is silent as to which state law determines the validity of a marriage, which is especially problematic when determining a same-sex couple’s right to file a joint bankruptcy petition. In particular, it is unclear whether a same-sex couple may file a joint petition when a couple was legally married in one state, but currently reside in a state that does not recognize same-sex marriage.

While the Bankruptcy Code does not attempt to define marriage or “spouse,” DOMA did attempt to do so. The Defense of Marriage Act (“DOMA”) section 3 had limited the definitions of “marriage” and “spouse” to opposite-sex marriages and spouses. DOMA explicitly applies only to federal law, but bankruptcy law is federal statutory law. Thus, for purposes of federal law and the Bankruptcy Code, only opposite-sex couples could file a joint bankruptcy petition. Prior to the Supreme Court’s decision in United States v. Windsor, which held that section 3 of DOMA that defined marriage as excluding same-sex couples “[was] a deprivation of liberty guaranteed by the Fifth Amendment’s Due Process Clause.” In so holding, the Windsor court declared the definition of marriage and spouse under DOMA section 3 for purposes of federal law was unconstitutional.


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