DOMA's Downfall has State-by-State Impact on Debt Collectors

Now that the Supreme Court has found the Defense of Marriage Act unconstitutional, how should debt collectors treat same-sex spouses?

In our most recent Ask the Attorney webinar on August 29, legal experts argued that the definition of “spouse” under the Fair Debt Collection Practices Act (FDCPA) may depend on the interpretation of state law. DOMA only applied to federal recognition of gay marriages or civil unions, which is why states have been free to pass their own laws allowing or disallowing gay marriage. Therefore, if a state recognizes same-sex marriages or civil unions as the functional equivalent of a traditionally defined spouse under that state law, then that state’s courts would apply the FDCPA the same way, in the context of a bankruptcy or other interpretations.

“That’s the problem I think that the bankruptcy courts face now, particularly with parties who are married in a state that recognizes same-sex marriage, and then move to a state that does not, and then later file bankruptcy,” said Don Maurice, Partner at Maurice & Needleman, P.C. “I mean, that’s a problem there, absolutely. And that’s one of the challenges that is faced by persons who have same-sex marriages or civil unions, is that there’s a lack of uniformity, and state law often determines their rights as spouses.”

In terms of communication, if a state recognizes gay marriage, then collectors would be able to communicate with a same-sex spouse. Also, when opening up for 1692(c)(d), the consumer’s spouse would be included.

Other hot topics in consideration from this webinar included: voicemail confusion for debt collectors (Which is safer, Foti or Zortman?), state specifics for collection (Why is it so tough to leave a voicemail in New York City?) and more.

You can download the transcript and audio recording from our August 29 webinar to read all about DOMA’s impact on debt collections and the other topics covered in the session.

Also, be sure to catch our next Ask the Attorney webinar on Wednesday, October 30 at 2 p.m. Eastern.

You can read all about our attorneys’ answers to the industry’s most pressing compliance questions in To the Point – Voicemails and Foti. We’ve condensed the compliance questions asked at our August Ask the Attorney Webinar into a user-friendly, five-part guide covering: Foti and Zortman voicemails, the latest news in robo-dialing and much more!

We’ve also included two appendixes with the full text of key court cases and regulations cited by our attorneys during the webinar.