U.S. Department of Justice Extends Equal Protection Rights to Same-sex Married Couples

The Department of Justice will now instruct all of its employees to strive to extend equal protection rights to legally recognized same sex couples.  The new policy change was announced by Attorney General Eric H. Holder Jr. in a speech Saturday night at the Human Rights Campaign’s Greater New York Gala.

Domestic support obligations will now include debts, such as alimony, owed to a former same-sex spouse.  These obligations will be exempted from discharge in bankruptcy, just as their heterosexual counterparts.  Federal inmates in same-sex marriages will now also be entitled to the same rights and privileges as inmates in heterosexual marriages, including visitation, escorted trips to attend a spouse’s funeral, correspondence with a spouse and compassionate release or reduction in sentence based on the incapacitation of an inmate’s spouse.

This DOJ policy change will have an enormous impact on bankruptcy practice.  Never before have same-sex married couples been able to file joint bankruptcy petitions.  Now such filings are possible in the State of Hawai’i.  This most likely also means that same-sex married couples will have to report household income for purposes of the Means Test even if only one spouse chooses to seek bankruptcy court protection.

Note that these equal protection rights only extend to same-sex couples that are legally married under state law.  If you are a same-sex couple considering bankruptcy court protection and have not yet married, it may be worth consulting with an attorney before you take that step so you can understand the impact of marriage in the context of debt relief through the Bankruptcy Code.