Transcript FAFSA and the Overturning of DOMA: What to do?

FAFSA AND THE
OVERTURNING OF DOMA:
WHAT TO DO?
Marie Johnson and Dot Brauer
of the University of Vermont
2014 EASFAA Conference
TODAY’S AGENDA
• DOMA before and after
• Updated FAFSA
• Place of Celebration Standard
• Legal Parent Status
• Case Examples
• Questions and Discussion
DISCLAIMER FROM
LAMBDA LEGAL
• This Guidance is intended to provide general information regarding major
areas of federal marriage-based rights and protections based on how the
various federal agencies have administered federal benefits. It should not be
construed as legal advice or a legal opinion on any specific facts or
circumstances, and does not create an attorney-client relationship. Past
practice is no guarantee of future developments. While laws and legal
procedure are subject to frequent change and differing interpretations in the
ordinary course, this is even more true now as the federal government
dismantles DOMA and extends federal protections to same-sex couples. None
of the organizations publishing this information can ensure the information is
current or be responsible for any use to which it is put.
• No tax advice is intended, and nothing therein should be used, and cannot be
used, for the purpose of avoiding penalties under the Internal Revenue Code.
• Contact a qualified attorney in your state for legal advice about your
particular situation.
UNDER DOMA
Under the federal Defense of Marriage Act (DOMA),
applicants with married same-sex parents were
instructed to treat their parents as if they were divorced,
and were therefore permitted only to list the contributions
and income of one parent. Likewise, applicants with
same-sex spouses were informed that their marriage was
not recognized by the federal government and were not
permitted to list their spouses on the application
PLACE OF CELEBRATION
STANDARD
FAFSA uses a place of celebration standard, which
means even if parents were married in a marriage
equality state and then moved to a state that does
not recognize their marriage, they are considered
married for the purposes of FAFSA.
WHAT CHANGED WHEN
DOMA WAS OVERTURNED?
Once DOMA was overturned, applicants with same-sex
married parents were treated like any other married
parents, which meant they were required to list the
incomes and contributions of both of their parents, and
applicants with same-sex spouses were required to list their
spouse as part of their household.
UPDATED FAFSA
Prior to the Supreme Court’s ruling on DOMA, the Department
of Education proposed an update to the FAFSA application
requiring all applicants to list both of their legal parents
regardless of marital status, provided they live together. This
update impacted all applicants filling out the FAFSA for the
2014-2015 school year and beyond. Once this new form was in
effect, marital status was no longer relevant for applicants
whose same- or different-sex legal parents were living
together.
2013 – 2014 FAFSA
Both parents were only listed if:
• The parents lived together AND
• Were a different-sex couple and were married;
OR
• Were a same-sex couple and were validly
married in a jurisdiction where same-sex couples
could marry, and both were legal parents. (If
the parents were married in a marriage equality
state, but lived in a state that did not recognize
their relationship, both had to be listed).
2013 – 2014 FAFSA
Both parents did not need to be listed if:
• The parents were not married, regardless of their living
situation;
• The parents were divorced, regardless of their living
situation; OR
• The parents had a registered domestic partnership or civil
union, regardless of their living situation.
2014 – 2015 FAFSA
Now both parents must be listed (and their income and
potential contributions):
• If they live together and if they are both legal parents,
regardless of their marital status.
• This is true for same- and different-sex couples.
Both parents do not need to be listed if:
• They do not live together; OR
• They are not both your legal parents (list only the legal
parent). If you have a step-parent married to your legal
parent, however, you will be required to list the stepparent.
DETERMINING WHO
MUST BE LISTED
• Legal parents who live together must both be listed.
• When two legal parents do not live together, only the
parent the student lives with should be listed.
• A step-parent who is married to, and lives with a legal
parent, must be listed.
WHO IS A LEGAL
PARENT?
• Parents qualify as “legal parents” if they are considered
such under the state law where they live.
• Every state has different laws about who is a legal
parent. (Lambda Legal suggests parents contact
one of the legal organizations listed on their
website for more information about a given state.
They also recommend parents consult with a
lawyer in their state if they are unsure about who
qualifies as legal parents.)
LEGAL PARENT STATUS
A legal parent is anyone who:
• Is an adoptive parent; or
• Has a valid court order saying they are a parent.
PEOPLE WHO MAY
BE LEGAL PARENTS
• A biological parent (unless they are a sperm or egg
donor or a surrogate under a state's laws, or their
rights were terminated by a court);
• Parents who were married to or in a civil union or registered
domestic partnership with a legal parent at the time the
child was born (if they live in a state that recognizes
their relationship); or
• In some states, parents who have lived with a child and held
themselves out as parents, who were intended parents who
conceived a child through assisted reproduction, or who
qualify under other laws in a state that recognizes them as
parents.
WASHINGTON POST
WEBSITE:
FISHER-BORNE CASE
EXAMPLE
COMPLICATED
LANDSCAPE
The Fisher-Bornes have been together for 16 years and
were legally wed in Washington, D.C. in 2011, but live in
North Carolina, a state that bans same-sex couples from
second parent adoptions. Since adoption law is the
domain of state courts and legislatures, the DOMA ruling
has no bearing on whether or not same-sex couples
have the same legal parental rights as heterosexual
couples.
SAME-SEX
ADOPTION BANS
• Until North Carolina’s ban is overturned, Marcie is Miley’s only
legal parent and Chantelle is Eli’s only legal parent. In the case
of either woman’s death, the other mother would be
considered a stranger by the court system. Even a legal
document like a will would not override a judge’s court order to
place the child with relatives or even into the foster care system.
• Several states, including Ohio, Utah and Mississippi, explicitly
prohibit same-sex couples from jointly adopting or entering into
a second parent adoption. In other states where same-sex
adoptions are not banned, the laws can often be murky and
dependent on variable factors, like county practices or a
sympathetic judge.
SMITH-JONES CASE
EXAMPLE
The Smith-Jones’ were married for 20 years when one of
them transitioned from male to female, making them a
same-sex couple. They were both biological parents of
the student who was applying for aid. Depending on the
state where this family lives, their same-sex status may
result in nullification of their marriage.
KEEP IN MIND
• The Supreme Court’s ruling in Windsor applies only to
the federal government. It does not change state laws
excluding same-sex couples from state-conferred
marriage rights.
• Federal agencies may take some time to change
forms, implement procedures, train personnel, and
efficiently incorporate same-sex couples into the
spousal-based system.
HOW DOES THIS IMPACT
FINANCIAL AID?
Constantly shifting landscapes:
• Marriage laws
• Same sex adoption laws
• Families move! Geography matters
BEING PREPARED
• What policies and procedures?
• What forms?
• How have you prepared to talk to students and families
about these issues?
• Dos and don’ts
• What situations have come up on your campus?
• What else?
LAMBDA LEGAL’S
STATEMENT TO
SAME SEX COUPLES
“Before making a decision [about marriage], … consult an
attorney for individualized legal advice. This is particularly
important for people who are on certain public benefits, as
getting married may jeopardize your eligibility without
providing you the full measure of protections other married
couples enjoy. In addition, couples who travel to another
place to marry and then return to live in a state that does
not respect their marriage may be unfairly unable to obtain
a divorce, which can lead to serious negative legal and
financial consequences.”
SAME SEX MARRIAGE
AND LAW LINKS
• Family Equality Council
• National Center for Lesbian Rights
• American Civil Liberties Union
• Gay & Lesbian Advocates & Defenders
• Lambda Legal