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Same-Sex Marriage Issues


Collectors might assume from this section of the FDCPA they can communicate with the consumer's same-sex spouse if the consumer resided in a state that recognized samesex marriages. The FDCPA does not define spouse; however, the federal Defense of Marriage Act (DOMA) explicitly precludes federal recognition of same-sex marriages and also allows states to decide whether to recognize same-sex couples' marriages that occurred in another state.Under DOMA, "marriage'' and "spouse" are defined as follows: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."Thus, under DOMA, a same-sex partner would likely not be considered a "spouse" under federal law. Though no case law exists on this exact point, because the FDCPA is a federal statute, federal courts faced with the question of whether to accept the state or federal definition of spouse or marriage may be inclined to reject the state's definition in favor of the definition under DOMA.

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									                           legal compliance
                               By Andrew Pavlik

Same-Sex Marriage Issues
Federal and state same-sex marriage laws covering collection issues remain unclear

I  n recent years, a number of states
   have taken the initiative of
   recognizing same-sex marriages, civil
unions or domestic partnerships while
other states have enacted legislation or
                                                      One of the more frequent questions
                                                  on this topic is whether a collector can
                                                  communicate with a same-sex partner
                                                  of the consumer if the couple is married
                                                  in a state that recognizes same-sex
                                                                                             consumer in a same-sex marriage. To
                                                                                             answer this question, collectors must
                                                                                             look to both state and federal law.
                                                                                                When examining state law,
                                                                                             collectors should look to the state’s law
constitutional amendments that                    marriages. A collector might presume if    regarding marriage as well as the debt
effectively ban same-sex marriages.               a state recognizes same-sex marriages      collection laws of the state. Currently,
Controversy aside, the legal recognition          and the state’s debt collection laws       five states allow civil marriage for
of the concept of same-sex marriage               normally allow communication with a        same-sex partners: Connecticut, Iowa,
raises new questions for debt collectors          consumer’s spouse in a traditional         Massachusetts, New Hampshire and
who practice in states where such                 marriage, a collector could also           Vermont.
marriages are allowed.                            communicate with the spouse of the            In Vermont, for example, the laws
                                                                                             regarding civil marriage require the
                                                                                             term “spouse” to be construed as
                                                                                             gender neutral. Likewise, Vermont’s
                                                                                             debt collection laws permit
   State Laws Regarding Same-Sex Marriages                                                   communication with the consumer’s
                                                                                             spouse. Thus, under Vermont law, it
  California: Same-sex marriage banned. However, previous marriages still recognized.
                                                                                             would likely be permissible to
  Connecticut: Allows same-sex marriage.                                                     communicate with a consumer’s same-
  District of Columbia: Same-sex marriages cannot legally be performed but same-sex          sex spouse. However, the analysis
                                                                                             should not stop here.
  marriages performed elsewhere are recogn
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