SAME SEX MARRIAGE, BANKRUPTCY AND THE FAMILY MEDICAL LEAVE ACT

             It has been well known to bankruptcy professionals for some time that unmanageable medical debt was a primary, precipitating event in many bankruptcy case filings. Many unplanned and unpreventable family situations created the mountains of medical debt. When a child, parent or spouse became ill and had to be cared for, the healthier, care giving parent, child or spouse missed work and lost their job, exacerbating the financial crisis.  It has yet to be seen what impact the Affordable Health Care Act (“AHCA”) – sometimes either affectionately or derisively called “Obamacare” – will have on the filing of so called “medical bankruptcies.”

            A new, unknown element has now been added to the mix. The Family and Medical Leave Act (“FMLA”)  – which provides certain protections to employees of larger companies who take time off for medically related family events – is being expanded to include a definition of families that includes same sex marriages. 

            The United States Supreme Court in United States v. Windsor, struck down the federal Defense of Marriage Act (“DOMA”) provisions that interpreted the terms marriage and spouse to be limited to opposite sex relationships under federal law.  Accordingly, the Department of Labor has responded by updating its rules applicable to the Family Medical Leave Act. 

            In a few days – on March 27th, 2015- a “final rule” is to take effect which extends the FMLA protection to same sex marriage families. This federal rule will be applicable even in states that do not give legal recognition to these relationships.

            Much remains to be seen what develops in these areas of the law.  One is the impact that this change may or may not have on bankruptcy filings.

© David G. Hicks, Attorney at Law

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