A simple syllogism.

Premise 1: in federal bankruptcy-law "spouses" may file a joint petition. So says 11 USC section §302(a).

Premise 2:"spouses" are defined under non-bankruptcy federal-law as persons of opposite sex. Conclusion: opposite-sex spouses may file a joint petition.

Inference: same-sex persons cannot file a joint petition.

Yet, federal bankruptcy law incorporates certain state laws. Some states sanction same-sex marriage. Can state law carry the day, or: for the same-sex, may there be same-joint treatment?

Listen, creepy-crawly-Google-Spiders* mining cyberspace for keywords. Listen up. I ask you, Can a Same-Sex Married-Couple file a joint petition in bankruptcy?

Traditionally, the answer was no. Till right around now.

Now, the Golden State's federal courts divide into different districts. In bankruptcy, one must generally file a petition in the district where one resided for the majority of the 180 days precedent to filing.** District courts are not fast-food restaurants, where you'll get pretty much the same questionable-quasi-beef patty, whether you dine beneath Angeleno or San Diegan golden-arches. So, when the Central District of California Bankruptcy Court (encompassing Riverside, L.A. and other burgs) says yay, the Southern District of California (including San Diego and Imperial Counties) says what it may. In other words, notwithstanding what follows, what happens in San Diego remains to be seen.

In the Central District comes the Memorandum of Decision of In re Balas & Morales entered June 13, 2011 by Judge Thomas Donovan.*** 19 other judges signed the decision. Therein, the court addresses the United States Trustee's motion to dismiss the joint filing of Balas and Morales because Balas and Morales are messieurs Balas and Morales. In reading the decision, one obtains a sense early-on where the court leans. In reciting the factual background, the court names the abbreviated forms of the opposing parties: the 2 aforementioned debtors are named "Debtors," and the United States Trustee is "sometimes referred to simply as 'trustee.'"

The court ultimately denied the trustee's motion and concluded that "[Mr. Balas and Mr. Morales satisfied] every legal requirement to pursue their joint petition as filed pursuant to § 302(a)."

Pursuant to its fleeting legalization in 2008, there were 18,000 gay couples married in California. Other states have permitted gay marriage, so including those who've flocked to the west, the present number would be higher. But in the Union's most populated state, these are relatively minuscule figures. Still, with the swelled numbers of bankruptcy filings, I expect that anon a married gay couple shall test the San Diego waters with a joint filing. Their case will determine whether the Southern District shall follow suit with Central. I would like to file that first case,**** but an interesting quandary comes up. A married gay couple may have strong conviction and wish to file jointly in order to effect new law in the Southern District. Yet, it may not be in their personal best interest to do so.

First, instead of a typical speedy resolution, they may suffer protracted litigation. The Southern District may not quickly follow suit with Central. Or the local U.S. Trustee may take a more vigorous stance. Legal wrangling is like those licorice spaces in Candy Land, which forfeit a turn. Eventually you'll get to Candy Castle, but your shoes will be sticky. The gingerbread man on the board of Bankruptcy Land may want to sidestep its mines.

In addition, gay spouses who file jointly may less readily qualify for chapter 7, or they may incur higher payments in a chapter 13. This is how:

In bankruptcy, a married debtor may elect to file separately, without their spouse. However, the non-filing spouse's full income is presumptively imputed to the filing spouse in testing chapter 7 eligibility or setting chapter 13 payments.

However, if bankruptcy does not recognize gay marriage as marriage, then it would be a double standard to presumptively count a non-filing gay-spouse's income. Yet, that selective approach is voiced in our district. Still, under the current status quo, one can reasonably contend that a gay spouse's income is outside the equation. That's an important measure of flexibility and creative argument that would be undone were one to follow In Re Balas.

So, when the married gay couple asks me, "We're the same sex, can we do the same joint [filing]?", I'll say,

"I can do separate or joint, boss. You want practical or principle?"

________

*Spiders, aka bots or crawlers are the programs that mine cyberspace and index all the nonsense out there: dating sites, gossip sites, bankruptcy blogs.

**More fully, a debtor may satisfy the 180d "venue" rule by virtue of residence, domicile, prinicipal assets, or principal place of business (and some other things). A rationale of venue is convenience--but whose? If you're new to a district, you may have to postpone filing till you've been here 91 days. This restriction rationally deters venue-shopping. Yet, for a debtor, it may effect forum non conveniens (Latin for "A sucky outcome"), if she's being actively garnished.

***The Latin phrase "In re" meaning "In the matter of" is traditional legalese. While their rhetoric may be long, legal professionals are fond of succinct and esoteric shorthand. It makes us feel special. The historical legal knack for abbreviation is a curious case, which some say foreshadowed the Twitter Age.

****Whether messieurs or mesdames will knock on my door, I don't know. It's a numbers game. I serve hundreds of clients , but the bankruptcy mills "serve" thousands. "Bankruptcy Mill" is defined in Black's Law Dictionary as:

ˈbæŋkrʌptsɪ, -rəptsɪ -mɪl/ n: "An impersonal firm with exorbitant advertising and aggressive salesmanship that attracts unsuspecting masses and operates under a dba till such point such dba earns bad press upon which a new dba is acquired with exorbitant advertising and aggressive salesmanship that attracts unsuspecting masses. The business model's persistent appeal is particularly perplexing."

Or something like that (and it's possible I purloined the Collins English Dictionary pronunciation key). See, I bought a hardbound volume of Blacks Law Dictionary back in law school when the confidence of youth compelled wanton purchases. It's a useless tome in the Internet age and the contemporary trend toward Plain English legal writing. Nonetheless, public suspicion of pervasive and insidious legalese persists, a ready excuse for ignoring abstruse imperatives of the like of, "stop using your credit cards" or "don't transfer your vehicle title to your cat."

AA

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