Better than Traditional Marriage?: The Bankruptcy Benefits to a Divorcee Following a Same-Sex Marriage, Domestic Partnership, or Civil Union

Abstract

Today, with one narrow exception, it is extraordinarily difficult for someone to file bankruptcy and discharge debts owed to a former spouse arising from the dissolution of their marriage. Since the Bankruptcy Code was enacted in 1978, one fundamental requirement that has remained unchanged: In order for a marital debt to be deemed nondischargeable in bankruptcy, the debt has to be owed to or recoverable by a “spouse, former spouse, or child of the debtor….”

The Bankruptcy Code has never defined “spouse,” but who is a “spouse” has never been an issue. Bankruptcy courts did not really worry about whether parties were spouses or former spouses; husbands and wives were spouses. That practice continued until 1996.

In 1996, Congress enacted the Defense of Marriage Act (hereinafter referred to as “DOMA”) and provided a federal definition of “marriage” and a federal definition of “spouse.” The definitions are very traditional and, as a result, the only parties who may prevent a marital debt from being discharged in bankruptcy are those creditors who are of the opposite sex of the parties who filed bankruptcy and who were either a husband or a wife.

This essay explores the effect of the marital-debt dischargeability provisions of the Bankruptcy Code as they apply to a creditor who was not joined with a debtor in a traditional “husband and wife” marriage. The determination of who may challenge the dischargeability of debts owed to a partner or spouse resulting from a relationship other than traditional marriage is unclear. Partners in same-sex marriages or domestic partnerships and, possibly, couples who were united in civil unions may find that bankruptcy does not offer the same protections to a creditor ex-spouse or ex-partner when the bankruptcy filing follows the dissolution of their unions. The Bankruptcy Code may not prevent their marital-type debts from being discharged.

Keywords: bankruptcy, dischargeability, same-sex marriage, civil union, domestic partnership