That 1913 Mass Law etc.
| August 19th, 2004From the AP via ABC News:
Superior Court Judge Carol Ball sympathized with plaintiff frustration that the 91 year old law had not been applied recently, but was only reactivated in the wake of the ruling to permit same sex marriage but noted the law is being applied equally. The state is also blocking marriages if couples are underage in their state of residence.
The plaintiffs are considering an appeal.
In related news, on Tuesday, a federal bankruptcy court in Washington State upheld DOMA. An American lesbian couple who married in Canada will not be permitted to file bankruptcy as a married couple in the US. I have not read whether they will appeal. I would have to guess that a couple in bankruptcy proceedings cannot afford a costly appeal.
Meanwhile, I’m waiting to hear whether the Louisiana anti-marriage equality amendment will be decided by a vote on the Sept. 18 ballot. I had thought keeping track of the ultimate decision was confusing enough when there were two suits. In one article, I read there were three cases each with its own appeals. I understand there will be an important ruling on one of the appeals tomorrow.
August 19th, 2004 at 7:45 am
Any great legal minds out there? The comment about the two lesbians who wouldn’t be able to file bankruptcy as a couple has me wondering.
What would stop a gay couple - if they have been together for many years and felt comfortable in their relationship - from having property kept in one persons name, charging up a ‘ton’ of credit card debt in the other persons name and then having that person file bankruptcy? At some point in time could one of them assume the balances of the other (such as by a credit card convenience check) and then filed bankruptcy after - leaving one person with good credit?
I ask this because about 2 years ago my cousin and his wife went throught bankruptcy and all debts seemed to be treated as ‘community property’. It almost seems that in the case of bankruptcy the law gives non-married couples an ‘out’ at least for 1/2 of the couple.
This comment was written by Brian.Report this comment to the moderators
August 19th, 2004 at 8:15 am
What would stop a gay couple - if they have been together for many years and felt comfortable in their relationship - from having property kept in one persons name, charging up a ‘ton’ of credit card debt in the other persons name and then having that person file bankruptcy?
Probably the same factors that would stop a cohabiting hetero sexual couple from doing this!
There are legal and ethical factors. Ethically, it’s fraudulent to intentionally charge up items with the intention to evade paying. I think it may also be illegal! (The lawyers can tell us– but I bet you’ll find it is illegal. Big time.)
If someone doesn’t mind the unethical aspects, or the likely illegality, there is always the problem that the strategy might not work for other reasons. Suppose you are not married, and you accumulate all assets in a partner’s name. You are fortunate in that this highly ethical partner continues to love and cherish you, and doesn’t suddenly fly off to Bolivia with all the dough, leaving you with the debt.
But, the highly ethical loving partner falls gravely ill and ends up needing the money– all in his name– to pay medical bills? Or what if they get sued for something?
What if the partner with all the money dies? At a minimum, estate taxes could cut into the estate significantly eroding your capital. Or, worse, the family might contest the will, win for some reason, and you get nothing!
I suspect given the ethical and legal factors– and then other practical factors, lawyers are going to recommend that unmarried couples, whether same sex or opposite sex, avoid this strategy!
This comment was written by lucia.Report this comment to the moderators
August 19th, 2004 at 12:28 pm
I hesitate to say it is fraud, given that people may disagree with me regarding the definition. However, my opinion is that it would easily meet the elements of fraud. The question is, can you prove it. An unethical lawyer could draft documents (trusts, partnership agreements, and various other transfer documents) to help conceal the fraud. You would probably have to save some of the cash to make the minimum payments for a few years before filing bankruptcy. That would somewhat mask the impropriety. Nevertheless, the proposal would be a fraud on the court, which is actionable.
There are many penalties of marriage. Due to the growing recognition of the equality of women the penalties of marriage have begun to outweigh the benefits in a strictly emperical sense. Women’s growing equality has made more women self sufficient. Empirically, some of the benefits of marriage are stability of income, shared medical, retirement benefits, social security. Now many women have this on their own right and do not need a husband to get these benefits. Without these benefits the only thing left are the penalties, for example, bankruptcy, community property, marriage penalty on state income taxes. When stacked up against each other the clear choice is “shacking up” as opposed to getting married. You can get all the benefits of being married without the penalties. In essence, one of the benefits of “shacking up” is that you are not required to pool your property as you are in marriage. That being, you could effectuate a plan to take the government for all their tax money in paying off your debts, while you and your cohabitant live a fruitful life.
Just to avoid any mortar volleys — cohabitant is not gender specific. My comments pertain to any household make-up.
This comment was written by J Stevenson.Report this comment to the moderators
August 19th, 2004 at 1:14 pm
The big advantages of a married couple filing for bankruptcy is that you get double the exemptions (except for the homestead exemption - there you get $33k instead of $25k in Oregon), which can help if the couple has an imbalance in assets or cash flow.
Regarding fraud - it’s very hard to prove fraud in the sense of someone running up credit card debt intending to file for bankruptcy. The rough guide is that charges deemed to be “luxury purchases” of over $1100 within 90 days of bankruptcy, or cash advances within one year of bankruptcy are presumed to be anticipating bankruptcy, and can be declared nondischargable (but not fraud).
Then again, the credit card company has to bring it up in an adversary proceeding, and unless you have an egregious case, it isn’t worth the attorney fees.
Most of my clients have stopped paying their credit card bills long before filing, though, so this isn’t much of an issue.
This comment was written by Aaron V..Report this comment to the moderators
August 19th, 2004 at 1:39 pm
On the bankruptcy - DOMA issue, this NYT article discusses the Judge’s decision a bit more.
This comment was written by lucia.Report this comment to the moderators
August 19th, 2004 at 4:07 pm
The irony of all this is that the state that doesn’t allow gays to marry and therefore divorce will have to deal with all the lawsuits and prosecutions as couples who are breaking up don’t have divorce law to lean on. And that’s gonna cost us money. Gay marriage is tort reform!
This comment was written by Amanda.Report this comment to the moderators
August 19th, 2004 at 4:50 pm
I wish that people would pay more attention to the context of the 1913 law, which was intended to prevent the recognition of interracial marriages. Not exactly a happy legislative history to be validating.
This comment was written by CynicalAeschylus.Report this comment to the moderators
August 19th, 2004 at 11:03 pm
I wish that people would pay more attention to the context of the 1913 law, which was intended to prevent the recognition of interracial marriages.
After interracial marriage was deemed unconstitutional, the law was still applied. As a matter of fact these types of laws were applied regularly to prevent foreign states from undermining the legislative intent of the home state. For instance, if you married two people your marriage was not recognized in several states. You could not leave the state and get married and come back to the state. These principles do not just apply to same-sex marriage. They also apply to incestual, polygamist, and minority marriages. I don’t know if MA has or has not applied this law. I know in Virginia, where I got married I had to swear, under penalty of perjury that the information I submitted was true and correct. I would suspect that MA had the same language on their marriage applications. It is not easy to look at someone and say they do not qualify under the laws of their home state except in certain limited circumstances. For instance, if a man comes in with a pre-pubescent boy, or a man comes in with a man and a woman, or a set of identical twins come in to get married you can easily enforce the rule and not issue them a certificate. If it is a young man and a older looking girl — it is much harder to discern whether or not they are telling the truth. It is not that MA did not enforce the law, I think it would be more accurate that they did not do a full investigation. I would assume the same is still going on. I suspect that when two women walk in to get married and they say they are from California — the MA clerk does not do a full investigation as to whether or not they are authorized to marry in their home state.
This comment was written by jstevenson.Report this comment to the moderators
February 11th, 2005 at 9:17 am
The comments re the overestimated benefits of marriage are right on the money (if you’ll excuse the pun). Sure there are some benefits to legal marriage. But if you find yourself married to a tax scammer, compulsive gambler, over-spender, general deadbeat, etc. etc., you’ll have a hard time making the other person assume responsibility for his/her own actions. YOU are the one who will probably ending up paying the IRS or the creditors calling you at work for stuff you never knew that your spouse purchased. T’ain’t fun. And not one of those things that is usually common knowledge, espcially when your head is aswim in picking out wedding dresses or a china pattern.
This comment was written by silverside.Report this comment to the moderators