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Can registered domestic partners (not married; just registered same-sex domestic partners in California) file a joint bankruptcy petition OR are they required to file individually?
09 January 2013

Even in light of DOMA being overruled, non-married same sex domestic partners must file separately and not jointly.

A. California Law

If an individual is married: (i) he alone may file an individual bankruptcy petition; (ii) he and his spouse may file two separate individual bankruptcy petitions; or (iii) he and his spouse may together file a single “joint petition.

B. Bankruptcy Code section 302(a) states in pertinent part:

(a) 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.

Thus, under this statutory language, above it would appear that California registered domestic partners are NOT eligible to file a joint petition since they are not married.

Registered domestic partners are not “married” under California law, and are not “spouses” under California law. Thus, even if there were no DOMA (Note: DOMA no longer exists as of July 2013) in existence, California registered domestic partners arguably would not qualify to file a joint bankruptcy petition under Bankruptcy Code section 302(a).

C. Application of domestic partners’ income in the Means test and Schedules I and J. Does a non-filing domestic parter spouses’ income must be included?

  1. Do you have to account for your domestic partner’s income if you are not filing jointly and assuming you are not married? YES.
  2. The “means test” makes no reference to “spousal” income or expenses; rather it refers to the debtor’s income, the debtor’s expenses, and sometimes to the expenses of the debtor’s “family unit,” as defined by the Internal Revenue Service. Nothing in the new bankruptcy legislation or the incorporated IRS calculations requires that the “family unit” involve a married couple. Therefore, same sex families, whether involving California registered domestic partners or otherwise, can be deemed a “family unit” treatment under the “means” test and the non-filing domestic partner spouses’ income should be included.

D. Conclusion

It is crucial to select an experienced Bankruptcy Attorney. Whittier City attorney Gregory E. Nassar is an experienced Bankruptcy Lawyer gladly serving Whittier City, and other cities within Orange County, Riverside County, Los Angeles County, and San Bernardino County. Attorney Gregory E. Nassar will review the case, carefully evaluating all the circumstances of client to determine the best route to solving the client’s financial detriment.

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