Document Type

Research Memorandum

Publication Date




Legally married couples may file a petition for bankruptcy jointly under section 302(a) of the Bankruptcy Code (“the Code”). The choice to file jointly is limited to only include married spouses, excluding partners and people in civil unions. Across virtually all jurisdictions, courts have explicitly rejected joint filings under section 302(a) filed by unmarried debtors. For example, an adult child cannot file for bankruptcy jointly with a parent, nor can a cohabiting unmarried couple file together. While the Bankruptcy Code does not purport to define who may qualify as a married couple, the Defense of Marriage Act (“DOMA”) does, defining “spouse” as a person of the opposite sex who is a husband or a wife. The individual states ultimately decide who is a spouse for purposes of state law; “[t]he determination of who may marry in the United States is uniquely a function of state law.” However, DOMA is federal law, as is bankruptcy under the Code, and so DOMA’s definition of spouse applies in federal bankruptcy proceedings. At issue is whether a same-sex couple, legally married under state law, may file a joint petition for bankruptcy despite DOMA.

In In re Balas & Morales, the United States Bankruptcy Court for the Central District of California allowed a same-sex married couple to file a joint petition. In doing so, the court also held that DOMA’s definition of “spouse” is unconstitutional as applied to same-sex married debtors under equal protection of the Fifth Amendment. The court found there was no legitimate government purpose in upholding DOMA and rejected the United States Trustee’s (“Trustee”) motion to dismiss “for cause” pursuant to section 1307(c) of the Code. The court deemed sexual orientation a suspect class and used heightened scrutiny to strike down DOMA in this case, while also asserting that DOMA could not even pass rational basis review. The debtors were allowed to continue their joint petition under chapter 13, as there was no other cause to dismiss asserted.


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