ED Releases Guidance on DOMA Ruling

Megan McClean and Karen McCarthy, NASFAA Policy Staff 

On Friday afternoon the Department of Education (ED) released guidance related to the Supreme Court ruling on the Defense of Marriage Act (DOMA) and the implications for Title IV student aid. The ruling in the Supreme Court case, United States v. Windsor, struck down the Defense of Marriage Act (DOMA), which prohibited federal recognition of same-sex marriage. Dear Colleague Letter (DCL) GEN-13-25 provides guidance on ED's application of the law, specifically related to how married same-sex couples will be treated in the Free Application for Federal Student Aid (FAFSA) process and expected family contribution (EFC) calculation.

To determine if a same-sex couple will be federally recognized as married, ED announced that they will apply a "place of celebration" rule, meaning that a same-sex marriage that occurred in a jurisdiction that recognizes same-sex marriage is recognized for the purposes of Title IV eligibility, whether or not the couple resides where they were married. This determination applies to both a student and to the parents of a dependent student. Noteworthy is that this ruling only applies to couples who are in a marriage and not to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law. This treatment applies to all questions related to marital status on the FAFSA.

Implications for FAFSA Completion and EFC Calculation

For the purposes of the FASFA and EFC calculation, legally married same-sex couples are now treated as married. The DCL provides the examples of 1) a student in a legally recognized same-sex marriage who otherwise met dependent student criteria, and is now considered independent for purposes of FAFSA completion and EFC calculation and 2) legally married same-sex parents of a dependent student who now both have to be listed on the FAFSA. The latter, of course, applies regardless of whether the parents are in a same-sex or opposite-sex marriage. 

Matters Specific to the 2013-14 FAFSA  

First time 2013-14 FAFSA Applicants: According to the DCL, a student who completes the FAFSA on or after December 13, 2013 for the first time "is expected to respond to all questions related to the marital status of the student and, if the student is dependent, questions related to the student's parents in accordance with the information in this letter." In other words, as of the date of submission, legally married students or parents must select "married" on the FAFSA, regardless of if they are same-sex or opposite-sex couples.

For Those Who Previously Submitted 2013-14 FAFSAs: The DCL states that "…as a result of the Windsor decision, an applicant who had previously submitted a 2013-2014 FAFSA but who was unable to respond to marital status questions as 'married' due to Section 3 of DOMA, may choose to submit a correction to FAFSA-reported marital status information." These are to be considered optional changes for 2013-2014 done at the initiative of the student, and may only occur "if the impacted student and/or parent was legally married at the time the FAFSA was initially completed." If the marriage occurred after the date of initial FAFSA submission the regular provisions concerning marital status updates apply, as detailed below.

Implementation Procedures 

If a student or parent chooses to modify marital status because they were in a legally recognized same-sex marriage at the initial time of application:

  • The institution is required to approve the marital status change
  • The new EFC must be used for all 2013-14 FAFSA and EFC purposes, even if it means the financial aid package has to be modified. 

If a student in a legally recognized same-sex marriage asks the institution for a marital status modification and was married after the time of initial application

  • Regular rules on updating apply, i.e., the institution can use discretion to update the student’s marital status, if the change would make the student independent and if the school deems it necessary to address an inequity or to reflect more accurately the applicant’s ability to pay. 
  • See page AVG-35 in the 2013-14 FSA Handbook for detailed guidance on updating.

If a parent in a legally recognized same-sex marriage asks the institution for a marital status modification and was married after the time of initial application:

  • Regular rules on updating apply, i.e., parental marital status may not generally be updated after initial application, except when selected for verification. NASFAA is seeking further guidance in this area.
  • All applicants selected by ED or a school for verification of household size or number in college must update those numbers to be correct as of the date of verification unless the update is due to a change in the student’s marital status.

ED has confirmed that schools are not required to verify or otherwise document a legally recognized same-sex marriage.

FAFSA Instructions and Revised Guidance

The 2013-14 FAFSA contains wording and instructions about marital status that is now incorrect in light of the DOMA court decision. Since the application year is underway and forms cannot be changed at this point, revised guidance for applicants who are completing the FAFSA marital status questions will be provided at the studentaid.gov Web site and at the Federal Student Aid Information Center at 1-800 4 FED AID (1-800-433-3243). ED has confirmed that it will not be proactively contacting applicants who have previously submitted 2013-14 FAFSAs to inform them of their revised guidance.

For the 2014-15 FAFSA and forward, all responses to marital status questions must be in accordance with the guidance in GEN-13-25. Upcoming changes to the 2014-15 FAFSA on the Web are in progress and will include the use of gender neutral terminology such as "Parent 1, Stepparent 1" and "Parent 2, Stepparent 2."

Unanswered Questions

ED may issue future guidance on other provisions of the Higher Education Act that are impacted by the DOMA court decision, such as parent PLUS eligibility, loan consolidation, and income-dependent loan repayment plans.

NASFAA has asked ED to provide more detailed guidance in these areas:

  • The timing of updates and what is allowable when a student has been selected for verification
  • What is allowable when a student or parent was in a legally recognized same-sex marriage at the time of initial application, but is no longer enrolled at the institution.

Stay tuned to Today’s News for further updates.

1 Comments

  • I appreciate the guidance from ED. I would like to know how this impacts already independent students who are going to be now recognized as married. Will they be required to report spousal income on the FAFSA? What if this impacts need-based aid eligibility for, say, a graduate/professional program?

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