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?
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