August 2014 update – Until recently the answer was no and the article written below was written in 2011. But as of June 26, 2013, the answer is YES. That’s because on that day, the U.S. Supreme Court struck down Sectin 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, 570 U.S. ___ (2013). That historic decision cleared the way for legally married same sex couples to enjoy the federal benefits conferred upon married couples, including the right to file a joint bankruptcy petition.
Pre 2013 the answer was possibly, although there have not been any cases filed in Washington state that suggest this outcome. In the last few weeks there have been a couple of interesting cases out of New York and California that suggest same-sex couples may soon be able to file a joint bankruptcy petition in Washington state as well as other states so long as the couples are legally married. Currently there are only a few states that allow for same-sex marriages including Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont plus the Washington DC, as well as other states that recognize same-sex marriage which include New York, Rhode Island and Maryland. Both the New York and California bankruptcy courts ruled that the Defense of Marriage Act (DOMA) does not prevent same-sex couples from filing a joint petition because DOMA is allegedly unconstitutional. It should be noted that often times it may be more beneficial for same-sex couples to file separately if they are above the median income for their state. Filing jointly, however could save debtors on attorney and filing fees and allow for less bankruptcy cases in the courts. Washington state is a member of the 9th circuit along with California, perhaps this is the start of a trend that will spread to Washington State, however only time will tell.
The cases of In re Somers and Caggiano, No. 10-38296 (Bky.S.D.N.Y. May 4, 2011), and the rulings in In re Balas and Morales, No. 2:11-bk-17831 (Bky.C.D.Cal, June 13, 2011), and In re Ziviello-Howell, No. 11-22706 (Bky.E.D.Cal. May 31, 2011), are the first instances where U.S. bankruptcy courts have approved the filing of joint bankruptcy petitions by same sex married couples.
If you have additional questions regarding file a same sex joint bankruptcy case give Symmes Law Group a call at 206-682-7975