According to court records, in 2016 more than 6,300 Chapter 7 bankruptcy cases were filed in the U.S. Bankruptcy Court for the Eastern District of California, Sacramento Division. The same year, just under 2,150 Chapter 13 cases were filed, bringing the total above 8,000 cases. Some of these bankruptcy petitions were filed by individuals, while others were filed jointly by married couples, similar to the way spouses may choose to file a joint income tax return. But what about couples who are not married? Is it possible to file joint bankruptcy with your boyfriend or girlfriend if you are unmarried? And how are same-sex marriages and domestic partnerships impacted? Sacramento bankruptcy lawyers explain the answers to these important questions for Californians seeking debt relief.
Can I File Bankruptcy Jointly with My Boyfriend or Girlfriend?
Unfortunately for unmarried couples, the answer to this question is no. Even if you have lived with your boyfriend or girlfriend for many years, and you share numerous jointly-held debts together, you will still be prohibited from filing with your partner. Under federal bankruptcy laws, only married couples have the legal option to file bankruptcy jointly.
Though your household income will be assessed when you take the “means test,” which determines whether you should file Chapter 7 or Chapter 13, you cannot treat your boyfriend or girlfriend as a spouse on your bankruptcy forms. Keep in mind that lying on your bankruptcy paperwork could cause your case to be dismissed, which means you will not get the debt relief you are seeking through the bankruptcy.
Can Married Same-Sex Couples or Domestic Partners File Joint Bankruptcy?
In 2015, the United States Supreme Court legalized same-sex marriage with the landmark ruling Obergefell v. Hodges, in which the Court held that state-level bans on same-sex marriage were unconstitutional. According to the results of a Gallup poll published earlier this year, more than 10% of the country’s LGBT adults are now married: a figure that equates to well over 100,000 Americans.
Before Obergefell legalized same-sex marriage in other parts of the country, California extended this right to its residents in 2008. Though the passage of Proposition 8 halted same-sex marriage in California from November 2008 through June 2013, the right was later restored through Hollingsworth v. Perry, which overturned Proposition 8.
As a result of the Hollingsworth and Obergefell rulings, same-sex couples are entitled to the same legal rights as other married couples – including the right to file jointly for bankruptcy. If you and your husband or wife are thinking about filing bankruptcy together, we invite you to contact our Sacramento Chapter 7 lawyers or Sacramento Chapter 13 attorneys for legal guidance. Before you file for bankruptcy in California, it is crucial to determine whether a joint filing would benefit you and your spouse. In many cases, it is more logical and cost-effective for only one person to file. For more information on this subject, see our article on whether married couples are required to file jointly, or simply call us at (800) 920-5351 for a free legal consultation about bankruptcy in California.
Bankruptcy laws no longer draw distinctions between lesbian couples, gay couples, and straight couples. They do, however, continue to draw distinctions between married couples and unmarried couples. If you and your partner are in a domestic partnership, you may be disallowed from filing together. In 2015 in In re Villaverde, the Bankruptcy Court for the Central District of California ruled against allowing two registered domestic partners to file a joint Chapter 13 petition, citing 11 U.S.C. § 302(a), which provides the following:
“A joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse.”
The emphasis here is on the word “spouse.” Though domestic partnerships are similar to marriages in many respects, only marital relationships qualify couples for joint bankruptcy petitions.
The bottom line is that you must file individually if you are unmarried. If you are married, you will have the option of filing jointly, but are certainly not required to do so. Filing individually may make better financial sense, depending on the nature of your debts, assets, and income.
In either case, you will file using the Voluntary Petition for Individuals Filing for Bankruptcy (Form B 101). If you are filing jointly, you will be required to supply information for both spouses. Per the instructions given to debtors, “[I]n joint cases, [bankruptcy] forms… ask for information from both debtors. For example, if a form asks, ‘Do you own a car,’ the answer would be yes if either debtor owns a car. When information is needed about the spouses separately, the form uses Debtor 1 and Debtor 2 to distinguish between them.”
CA Bankruptcy Lawyers Serving Sacramento and Roseville
If you and your husband or wife are thinking about filing for bankruptcy together, make sure that filing a joint petition is the best course of action before you begin the process. Depending on your circumstances, you may be better off filing individually and excluding your spouse from the bankruptcy proceedings.
Regardless of whether you file jointly or individually, it is critical that you have step-by-step guidance throughout the process. Bankruptcy laws are extremely technical, and it is easy to overlook valuable opportunities or make costly errors unless you have assistance from an experienced Folsom bankruptcy attorney. For a free consultation, contact The Bankruptcy Group at (800) 920-5351 today.