Defense of Marriage Act
With the recent decision of the United States Department of Justice (which includes the Office of the United States Trustee) to NOT enforce the Defense of Marriage Act, aka DOMA, questions have been raised around the country whether same sex couples that have been married in a state that recognizes same sex marriage could then file a joint petition in bankruptcy in another state (or even that same state of marriage).
DOMA in Kentucky
Since the United State Department of Justice’s decision to NOT enforce DOMA, there have been no Kentucky bankruptcy reported court decisions, that I could find, that have approved the filing of a bankruptcy petition by a same sex married couples. Of course, there may have been same sex joint petitions filed, but the Office of United States Trustee just may have not objected to the petition, resulting in no reported decisions. There may be Kentucky bankruptcy court opinions that have not been published.
I did find three recent reported decisions in other states that uphold a same sex married couples right to file a joint petition.
In Re Balas, CDCA, 449 BR 567, the Court upheld the right of a same sex couple to file a joint Chapter 13 petition, in holding that DOMA did NOT advance any valid government interest.
In Re Somers, SDNY, 448 BR 677, the Court held that “cause” did not exist to dismiss the case based solely on provisions of federal legislation, the Defense of Marriage Act, that the executive branch had declined to enforce.
Finally, In Re Cohen, DNM, currently no cite, slip copy, the Court, following In Re Balas, denied a creditor’s Motion to Dismiss the case.
In conclusion, this issue is one that may face the bankruptcy court’s in Kentucky, or may not, depending on the United States Department of Justice’s decision not to enforce the Defense of Marriage Act. But, as the opinions above shown us, a creditor may still seek to have the Federal law enforced, so the Kentucky bankruptcy courts may still face the issue.
Only time will tell!