On the heels of the Supreme Court striking down key parts of the Defense of Marriage Act (DOMA), including holding that in states where it is legal for same-sex couples to marry, the government must extend same sex couples federal health and social security benefits, and extending tax benefits to same same-sex couples, Attorney General Eric Holder has announced that the Federal Government will extend married couples equal protection under the law.
One of the many victories of this announcement is that couples in same sex marriages will be allowed to jointly file for bankruptcy and domestic support obligations, such as alimony owed to a former same-sex spouse, can no longer be discharged through bankruptcy proceedings.
Generally, domestic support obligations are not dischargeable in bankruptcy but, in the past, the federal government could challenge joint bankruptcy filings in states that did not recognize same-sex marriage and the debtor spouse could seek to avoid their support payments on the grounds that their state did not recognize same-sex marriages and thus, those pesky support payments, were not support payments and were therefore dischargeable.
However, under Chapter 11 and Chapter 13 bankruptcy proceedings, the debtor spouse, in any marriage, may discharge certain alimony payments during bankruptcy proceedings where the alimony payment has been assigned to a third party or where the debts, although written as alimony, are not for spousal support (such as a penalty for late support payments). A debtor spouse may also be able to reduce their debt payments under a Chapter 13 bankruptcy proceeding. Although, the supported spouse should also be heartened to hear that while the supporting spouse may be granted an automatic stay of enforcement by creditors, the stay does not apply to proceedings to determine or enforce the payment of child support or alimony (except that it may stay proceedings to determine how to divide up marital property mad may require the permission of the bankruptcy court to proceed). Bankruptcy may also affect the ability of the supporting spouse to pay alimony and the need for a spouse to receive alimony, both of which are major factors used by the Court in determining whether an award of alimony is appropriate. Pursuant to the Maryland Family Law Article §11-106(b), the Court shall consider all the factors enumerated below, to determine a fair and equitable award of alimony:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
The Court must demonstrate that it has considered all of these factors, including factors that are not expressly listed in this section but which the Court deems “necessary and appropriate” in determining an award of spousal support.
If you are concerned about how your or your former spouse’s bankruptcy proceeding may affect your divorce proceeding, you should consult with your attorney immediately to discuss your rights.