The federal Defense of Marriage Act precludes federal
recognition, even if states recognize gay marriage. File 2 separate
bankruptcy petitions if both need to file, and move to consolidate of you see a
benefit to doing so. DOMA can be a two-edged sword, though. Because of DOMA, two same-sex spouses are considered to be unrelated roommates, meaning that the non-filing spouse’s income need not be reported on Sch. I except to the extent it’s being used to fund a c. 13 plan. I double-dare any 13T (who works for the Justice Dept., after all) to argue that DOMA doesn’t apply in this situation. Of course, the non-filing spouse’s contribution to household expenses will also be on the B22x, but one needn’t complete the spouse column or worry about the marital exclusion. I suppose there could be bad-faith objections if the bankruptcy non-filer was earning a lot more than the filer, but I suspect that our judges might well hoist the UST/bankruptcy 13T with their own petard in this situation.

This seems like poetic justice to me. If they can’t file joint tax returns, get survivor benefits under Social Security, etc., at least one of them can get a fresh start despite BAPCPA.

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