A Challenge to U.S. Bankruptcy Laws Could Open Doors for Gay Couples Seeking Federal Relationship Recognition Skip to main content

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A Challenge to U.S. Bankruptcy Laws Could Open Doors for Gay Couples Seeking Federal Relationship Recognition


Recent gains for marriage equality in states like Iowa and New Hampshire have been met by a lot of legal questions for those who are actually considering marriage with their gay and lesbian partner. Confusing differences in relationship recognition amongst state and federal laws can create true legal challenges for same-sex couples throughout the country. These legal hurdles for gay and lesbian spouses include barriers when these couples seek the benefits of bankruptcy. Because the federal government crafts bankruptcy legislation and bankruptcy law is decided on the federal level—and yet, bankruptcy law is regulated on the state level—differences can emerge in the way cases are handled, especially where same-sex couples are involved.

Nevertheless, a married lesbian couple in California recently shed new light on the human cost of this legal confusion and, through their own bankruptcy, may have just opened the door for more debate regarding legal relationship recognition on the federal level.

When Brenda and Lynda Ziviello-Howell found themselves in financial trouble in early 2011, they filed a joint petition for bankruptcy relief. And, in the eyes of the state of California, the couple, alongside the 18,000 other same-sex couples who married during a brief window of opportunity in 2008 before Prop 8 again banned same-sex marriages in the state, were entitled to all the joint benefits that go with their status.

Not so, said the U.S. Trustee, the federal agency that oversees such cases.

Because the federal government does not recognize gay marriage, the couple finds themselves in what the Sacramento Bee called “legal limbo.” Nonetheless, the newspaper argued, “The landscape is beginning to change, legal specialists said, as couples like the Ziviello-Howells win small victories in court. A bankruptcy judge last month overrode the U.S. Trustee, finding the women were legally married and could go forward with their case as spouses. ‘Portions of the federal government's Defense of Marriage Act are crumbling, at least in the lower courts,’ said Brian K. Landsberg, a distinguished professor and scholar of constitutional law at the University of the Pacific McGeorge School of Law. The ultimate fate of the federal law, which defines marriage as between ‘one man and one woman,’ likely will rest with the U.S. Supreme Court, Landsberg said.”

Until that day, the Ziviello-Howells count themselves among the first same-sex couples to challenge the "equal protections" of bankruptcy laws. But unlike many gay and lesbian couples who head to court in the ongoing fight for legal relationship recognition, this particular California couple, like so many opposite-sex spouses across American, simply faced tough financial times, and found themselves forced into bankruptcy by untenable car payments, utility bills and medical costs.

After seeking the safe havens of bankruptcy, like so many millions of similarly-situated Americans reeling from the economic downturn, the couple quickly found that federal laws meant the spouses must file separately, forcing them to divide their finances and double the legal fees.

According to the Sacramento Bee, “Ultimately the bankruptcy court, while declining to address the constitutional issue, ruled that the joint bankruptcy could go forward because the couple are legally married…The Ziviello-Howells may have to wait awhile for their bankruptcy to be resolved, but they are prepared to ‘do whatever it takes to see it through,’ Lynda said. Unwittingly, they said, they have become activists. ‘We will take it as far as we can,’ Lynda said. ‘This is not just for us, it's for gay couples all over who are in this situation.’”

If you are you are same-sex couple in North Carolina struggling with debt, you deserve equality in bankruptcy relief. At the Law Offices of John T. Orcutt, our attorneys have helped many gay and lesbian couples file for bankruptcy and we can help you. We offer a totally FREE debt consultation and now, more than ever, it’s time to take us up. Just call toll free to +1-919-646-2654 24 hours a day. You can even make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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