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 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 step- parent.

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