Recently, I’ve encountered two different situations in which the parties to a joint bankruptcy were not married. Unfortunately, it became necessary for one of the two debtors to be dismissed so that the case was no longer joint. Here is the pertinent provision from Section 302 of the Bankruptcy Code:
(a) A joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter.
(b After the commencement of a joint case, the court shall determine the extent, if any, to which the debtors’ estates shall be consolidated.
Question: what about common law marriage?
I think that if there is a final decree from a court with appropriate jurisdiction adjudicating two persons to be common law husband and wife, then they are eligible for a joint case in bankruptcy. Marital status is strictly determined by state law, however, so it is important to know your jurisdiction’s position. In Alabama, for example, effective January 1, 2017, common law marriages are no longer recognized. I know Florida abolished common law marriage back in the late ‘60’s, and Georgia abolished common law marriage in 1997. I would think there are very few states in which the status is recognized nowadays, but be sure to check your jurisdiction.