Bankruptcy Issues for Same-Sex Spouses

We have represented many same-sex couples in bankruptcy throughout the years, before and after the landmark decision in Goodridge v. Department of Public Health which provided legal recognition to same-sex marriage in Massachusetts. Despite this decision, there continues to be several special issues in same-sex bankruptcy cases.

Bankruptcy is a federal proceeding and same-sex marriage is not recognized on a federal level. See Defense of Marriage Act. This means that same-sex spouses cannot file joint bankruptcy petitions. The impact of this is primarily technical: One can get the same relief with two petitions as with one. Also, here in Massachusetts, if two bankruptcy cases are filed simultaneously, the creditor meeting for each will be assigned the same date, time and trustee. This allows same-sex spouses to experience the creditor meeting together, though--unlike in the case of heterosexual couples--they will still be examined under oath individually.

One significant drawback to the treatment of same-sex spouses in bankruptcy is that the cost of two bankruptcy cases is always higher than for one case. However, it has been my experience that same-sex spouses tend to have less joint debt than heterosexual couples (although this may change with time). Consequently, if only one spouse has debt problems, it may be advisable for just that spouse to file bankruptcy. This is a right that all married people have, which may be more often advantageous for same-sex spouses.

Means testing for same-sex couples:
There isn't any real difference in how a means test is formulated for roommates, same-sex couples, straight couples, or anyone else. There are differences with how the forms are filled out, but those are just details. The crux of it is that both spouses are counted in household size for the means test and then any contribution to the debtor's household expenses from the other spouse is also included. This is essentially what happens in a traditional joint case. The mechanics are different, but in a way that benefits gay spouses: the non-filing spouse's total income does not need to be included and then diminished by the so-called "marital adjustment." For a same-sex spouse the non-filing spouse's actual net household contribution need only be listed on the means test.

P.S. I wrote a post a few days after this one reporting on how one Massachusetts (federal) judge declared the Defense of Marriage Act unconstitutional. It can be viewed here.

Options After Your Car is Repossessed in Massachusetts

Here are a few practical tips for what to do after your car is repossessed. What I write here only pertains to Massachusetts because car repossession law is a state-specific matter in almost all respects.
First of all, you're probably distressed if your car was repossessed. That's understandable. You might need your car to get to work, or you might have thought you had more time, your car might have been taken during the dim hours of the night or early in the morning and involved some sort of drama. However, what to do next? Here are some thoughts in question and answer format.

1. Have my rights been violated? Maybe. There are two main ways we see in which rights are violated during repossession. First, you may have not received the required 21-day written notice called "Rights of Defaulting Buyer under the Massachusetts Motor Vehicle Installment Sales Act" before your car was seized. Second, the repossession company may have breached the peace in the course of the repossession. Breaching the peace can mean threats, coercion, and other oppressive acts committed during a repossession. I wrote a bit more about that here.

2. So what if my rights were violated? This is a really good question. Laws only have meaning when people can actually enforce them. The criminal laws are enforced by the police, but individuals have to enforce their own rights under civil law. The repossession laws I am writing about are civil laws.

3. So are these rights enforceable? The really good news is that they often are because other laws exist (such as the Massachusetts Consumer Protection Act) that help people who can't even make their car payments afford expensive attorneys. These laws require the wrongdoers to pay your attorney's fees if you are successful in pressing your rights.

4. But what about the car? Can I get my car? This is not the easy part because the laws I mention above primarily function to get you money damages for wrongful repossession. So, the most common approach if you want your car is to call the car lender ASAP after repossession and agree to pay whatever they want. After doing that you can still sue the car lender for money damages. There is, in general, a 20-day period that you have to "redeem" a repossessed car. Sadly, this is one of oft-ignored laws in the repossession field. So, if you want your car, act as quickly as possible.

5. What can they make me pay to get the car back? The answer is the whole amount of the loan. That's right. However, that is only if the repossession wasn't wrongful--they sent you the 21-day notice, peaceable repossessed the car, etc. The bad news is that, whether or not the repossession was actually wrongful or not, the car lender will always think they've done everything perfectly and that their company is absolutely infallible. So, be nice--even though they do not think they have to, they will often let you have the car back for just the back payments and repossession/storage fees. As I said, you can still sure them for damages afterwards if the repossession was wrongful.

6. What if I can't afford to pay what they are asking? This is pretty common. The options are not too good here, at least for getting the car back. One option: you can file for bankruptcy within the 20-day redemption period and get the car back. Another option: you can quickly file a lawsuit in state court for what is called replevin (and money damages). The state court replevin option is not very common.

*Note: If your car has been repossessed in Massachusetts, we might be able to help. However, due to high call volume after I posted information here about Massachusetts car repossession, we must first receive the completed form found here: http://www.mass-legal.com/repo_quest.asp. We will review your matter confidentially and free of charge.