Bankruptcy and Domestic Partnership

Asked about 3 years ago - Everett, WA

I am living with my fiance. He is starting at Boeing and we want to file for domestic partnership since we are living together so my kids and I can be on his insurance. I am currently filing for bankruptcy and I know that getting married will affect my filing for bankruptcy, but I want to make sure that filing for domestic partnership will be ok since we are living together. Thanks so much in advance, we need to file this today because he is filing all his paperwork out tomorrow.

Attorney answers (3)

  1. A. Spencer Bergstedt

    Contributor Level 8

    Answered . While the Federal Government only recognizes different-sex couples currently for bankruptcy filings, things are changing at the Federal level as it relates to same-sex couples in marriages and/or registered domestic partnerships. One example is that the IRS now allows (if not requires) registered domestic partners and same-sex married couples to file joint tax returns.

    Within the realm of bankruptcy, if you register as domestic partners before you file your bankruptcy, the US Trustee may want to look at your partner's income as a resource available to you - just as they would any other married person who is filing a bankruptcy separately. There are a few bankruptcy cases which deal specifically with domestic partners and, predictably, the federal government wants to recognize domestic partnerships for some reasons while not recognizing them for others.

    You are likely best off to file the bankruptcy first and then register as domestic partners. However, in any event, you should discuss your situation with your bankruptcy attorney.

    PLEASE BE ADVISED: This answer and any information contained herein is not intended to be treated, and should not... more
  2. Erik Samson Bakke Sr

    Contributor Level 6

    Answered . To answer your question properly, an attorney must understand whether you are talking about a same sex relationship, or a relationship of different sexes. "Domestic Partnership" as that term is used under Washington law implies a same sex relationship (except in very, very limited circumstances), and, only if the same sex relationship has been registered with the Secretary of State's office. As a domestic partnership, you enjoy all the benefits of a married couple (community property, community debts, community income, etc.) with the only real exception being that you cannot get married. At present, Washington will not recognize a marriage of same sex individuals, even if married in a jurisdiction that allows and recognizes such a marriage (ie.) B.C., Canada).

    From a bankruptcy law prospect, there are strategic reasons for a married couple to file separately or together. However, the bankruptcy code does not define marriage. Marriage is defined under the Defense of Marriage Act ("DOMA"), and clearly states that a marriage shall be between one man and one woman. There are two very lengthy opinions from Washington Bankruptcy courts that discuss whether a domestic partnership can file a joint petition in bankruptcy. At present, the law is that you cannot. However, with the announcement of the Obama administration that they will not defend constitutional assaults against DOMA, there may be a reprieve in bankruptcy court from the enforcement of joint petitions consisting of only a husband and a wife.

    The next issue is whether a "domestic partnership" will be considered as one household/income producing unit (like it would be under community property law of Washington State) for the purpose of calculation of disposable income or eligibility to file a Chapter 7 Bankruptcy. A Wisconsin Bankruptcy court has held that since a “Domestic Partnership” is not a marriage, it is not a single unit and the individual income from each partner would not be considered together for calculation of the means test or for the determination of eligibility. The US Trustee did not pursue an appeal of this ruling.

    As you can see, this area of the law is quite complex, and the legal landscape is changing more rapidly than ever before. You need to consult with an attorney who is both familiar with bankruptcy law as well as family law as it relates to Domestic Partnership (if we are talking about a same sex relationship). There may be a strategy to file separately, or, if possible, to try to file together. Only an attorney can help you make this decision after reviewing the specific facts of your case with you. Washington State Law is vastly different in this area then previous bankruptcy law and rulings, and now might be the right time to pursue other options under the bankruptcy code.

  3. Dorothy G Bunce

    Pro

    Contributor Level 20

    Answered . Since federal laws only recognize marriages at this time, having a domestic partnership should not be an issue that you would need to address in a bankruptcy. Unless you are married and file tax returns together, for the purpose of filing a bankruptcy, you are still single (but not looking, right!)

    Hope this perspective helps!

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