DOMA defeat

Married lesbian couple fight for right to file joint bankruptcy—and win

Brenda and Lynda Ziviello-Howell with their great-niece and soon-to-be-adopted daughter, Liliana.

Brenda and Lynda Ziviello-Howell with their great-niece and soon-to-be-adopted daughter, Liliana.

Photo By Stacey kennelly

Lynda and Brenda Ziviello-Howell cleared a few chairs and got comfortable under the large canopy that makes up 3-year-old Liliana’s outdoor playroom. Franky, an easygoing dachshund, relaxed on Lynda’s lap as Liliana—the couple’s great-niece—squirmed on Brenda’s.

The couple have lived in their modest Magalia home for a decade, and Lynda and Brenda have endured ups and downs just as any married couple does—the constant struggles to pay the bills, unanticipated injuries, and death in the family are just a few of the cards they have been dealt during their 13-year relationship.

The two legally married in Sacramento in 2008, during the less-than-five-month window in which California issued marriage licenses to same-sex couples. But, despite that validation, they have since faced the same struggle thousands of other same-sex married couples are facing around the nation: the fight to be treated the same as straight married couples by the federal government.

That fight came to a head for Lynda and Brenda in the fall of 2010, when they visited Chico bankruptcy attorney Joseph Feist for advice and learned they couldn’t file jointly due to the Defense of Marriage Act (DOMA), a federal law that defines marriage as a legal union between a man and a woman.

The couple knew filing separately wasn’t an option. Not only would they have to pay the $1,300 filing fee twice, but Brenda is on Social Security disability, and that income cannot be garnished, she said.

“So she was the one who really had to go bankrupt,” Brenda said, gesturing toward Lynda.

Believing their circumstances made for a strong case, Feist offered to represent the women pro-bono and gave them the option of taking on the federal government.

“We realized that we would have to fight for the right to do this,” said Brenda, noting that the couple knew the case was groundbreaking and might thrust them into the national spotlight. “So we said, well, all right, let’s do this.”

Lynda and Brenda officially filed for joint bankruptcy in February. On May 31, they prevailed when Sacramento Judge Michael McManus denied a motion by the federal government to dismiss their case, saying it was not in the best interest of all parties regardless of whether DOMA is constitutional, Feist said by phone.

“I have known him to be a good judge, but this is not an issue that has ever actually come across [Judge McManus’] desk before,” Feist said, noting that cases of the Ziviello-Howells’ nature were unprecedented until recently.

Similar situations are unfolding around the nation. In May in New York, a married gay couple filing for joint bankruptcy prevailed in a case almost identical to the Ziviello-Howells’, Feist said. And in mid-June in Los Angeles, another married gay couple prevailed in a joint-bankruptcy case, but in their case nearly two-dozen California judges ruled that DOMA was unconstitutional and in violation of the couple’s equal-protection rights guaranteed by the Fifth Amendment.

Those decisions come on the heels of the Obama administration’s announcement in February that DOMA seems to be unconstitutional and the federal government will no longer actively defend it, Feist explained.

And last Friday (June 17)—the same day the Ziviello-Howells celebrated their official three-year wedding anniversary—the United Nations formally announced its support of gay and transgender rights.

That kind of momentum has been picking up for a while, and contributed to Feist’s inkling back in fall 2010 that he and the Ziviello-Howells would prevail, he said.

“It was about the bigger picture of equality, of wanting to be treated like any other married couple in California,” Feist said in reference to the couple. He also said he anticipates the decision will be appealed, but that the appeal will not be victorious.

As most Americans know, the decision to file for bankruptcy is not entered into lightly. For the Ziviello-Howells, it was a last resort they reached after a series of misfortunes.

Brenda, who injured herself on the job in the late-1990s and does not work, was doing what she could to take care of her grandparents, who were suffering from Alzheimer’s and dementia. When her grandfather passed away in late 2009, Brenda—who has a history of depression—got behind on the family’s bills, which she was in charge of.

“I just mentally shut down,” Brenda said, pausing to hold back tears. “I should have done better than that.” Around the same time, Lynda, who works as a bus driver, had her work hours cut.

By the time Brenda came clean to Lynda, they were in a financial hole.

“I was pretty mad. It was far too late to make up for what we owed with our peanut paychecks,” said Lynda, reaching out to comfort Brenda. “But the bottom line is, I loved Brenda, and I always will.”

“We truly believe in the ‘for better or for worse,’ ” Brenda added.

The experience fighting for their right to file together has bonded them more closely, and when their bankruptcy is settled, they plan to adopt Liliana, who has been thriving under their roof since her birth. They have been her legal guardians since 2008.

Their triumph has also inspired them to take on other causes, and has given them a crash-course in activism and the media spotlight that comes with demanding equal treatment in a time when gay rights are dubious.

“I’m mad now,” Lynda said with a half-laugh. “I’m taking on Social Security next. When I die, [Brenda] can’t take my Social Security money.”

“And next year, we’ll file our taxes together, too,” Brenda added.