Let me start with this:
I’m not a criminal lawyer.
If it weren’t for SVU: Law and Order, I would next to nothing about criminal law.
Having said that, what I remember from studying to become a lawyer is this:
Fraud typically includes some sort of intent element.
That is to say, you have to intend to commit fraud.
Do you commit fraud if you check the “married, but cannot reasonably access my spouse’s income information?”
If your spouse is willing to sign the form and turn over their income information, then, yeah, you likely commit fraud if you check that box.
Conversely, if you filed your last tax return separately and your spouse refuses to (a) give you their income information (pay stub, W-2, etc.) and (b) sign the form, then you likely don’t commit fraud by checking that box.
But what if you filed your 2020 tax return jointly but your spouse refuses to sign the form? Do you then commit fraud if you check the box?
Here’s what I mean.
Yes, it’s clear that in checking that box, you’re saying you don’t have reasonable access to your spouse’s income information even though you filed your tax return jointly.
How can you not have reasonable access to their income information if you filed a joint tax return?
Even if your spouse refuses to give you a copy of the tax return, you can still request the tax transcript from the IRS yourself. Still, your spouse is refusing to sign the form. And the servicer will reject the form if your spouse doesn’t sign.
So what do you do?
As I shared above, I’ve heard plenty of representatives from the various loan servicer advice borrowers to check the box.
When they do, two things happen.
First, as I said above, you’ll be treated as single. As such, you’ll lose your spouse from your family size.
Second, your gross income, not your AGI, will be used to calculate your discretionary income.
Do you commit fraud if your student loan payment amount is artificially higher than it would be if you were able to use your AGI and include your spouse in your family size?
I just don’t know.