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Same Sex Bankruptcy Filings

With gay rights being on the forefront of most political discussions, I have begun to be asked whether an openly gay married couple can file bankruptcy in Virginia. Until recently, the US Trustee's office has left the decision to the states. If a gay marriage is legal in a state, then you can file a joint bankruptcy petition.

However, this week, the Department of Justice directed its agencies to make sweeping reforms on this subject. Here is an article on the subject: Essentially, the new policies of the Department of Justice and the US Trustees will be that if the parties were legally married in a state, they can file a joint bankruptcy even if the state they are currently in prohibits such a marriage. Accordingly, the answer to this question is now very clear. If you are a gay married couple and were legally married in a state, and you now live in Virginia, you will be able to file bankruptcy the same as a heterosexual married couple even though Virginia prohibits the legal recognition of such a union. Also, the rules have changed that the trustees must honor domestic support obligations to gay married couples as part of approved expenses. Essentially, the bottom line on this subject seems to be if its a heterosexual married rule it equally across the board applies to homosexual married cases.  Since bankruptcy cases are federal in nature, it seems that even if the voters in Virginia do not like this, they will not be able to change it either by referendum or by legal challenge.

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