Who Gets To Claim The Kids?
When parties get divorced, they often have a property settlement agreement wherein they agree who will claim the children as tax exemptions. It is not uncommon for the parent who is not entitled to claim the child to claim that child as an exemption when it comes time to file the tax return.
The IRS has passed new rules clarifying who may claim the children as exemptions on their tax returns when the parties are divorced or separated. Form 8335 must be signed by the custodial parent and attached to the tax return for the non-custodial parent in order for the non-custodial parent to be entitled to claim the child.
In the past, if a parent wrongfully claimed a child as an exemption, the parent who would be entitled to claim the child would simply have to submit to the IRS the part of the final judgment for divorce or property settlement agreement setting forth the language as to who is entitled to claim the child and the problem would be solved. The IRS would accept the second tax return and go against the first filer to get back any refund that was wrongfully claimed. That is no longer the situation.
The IRS will be following the "first to file" rule and that is, if the parent claiming the child files first and claims the child - even if not allowed to do so under the FJD, that parent will get the deduction. The IRS will not correct the situation when the second tax return gets filed and that parent attempts to claim the child. The parent who is entitled to claim the child will have to file a motion with the family court requesting that the other parent be ordered to sign Form 8335 and the to be submitted to the IRS.
What if the parties never reached an agreement as to who would claim the child/ren? In this case, the custodial parent is entitled to claim the child. The definition of "custodial parent" is tricky because in many families, the parents have a shared parenting arrangement. In that case, the "counting rule" is the new rule to determine who is entitled to take the exemption.
Now, it does not matter if your divorce decree says you can claim your child. You will need your Ex to sign Form 8335 and attach it to your tax return in order to get the deduction. Effective for tax years beginning after July 1, 2008, the exemption for a qualifying child of parents who are divorced, separated under a written separation agreement or who lived apart at all times during the last six months of the year goes to the custodial parent, regardless of what the divorce decree or written separation agreement says, unless the noncustodial parent attaches a signed waiver effective for that tax year.
Where one or both parents have physical custody for over one-half of the calendar year and the child is under the age of majority, the parent with whom the child lives longer during the calendar year is the custodial parent. The child is deemed to reside with a parent using the counting -nights rule, where each night that a child sleeps at the parent's residence or sleeps in the company of the parent when the child does not sleep at te parent residence, such as when they are on vacation, is a night of residence for that particular parent. In the case of a parent who works at night, a child resides with the parent based on the greater number of days, not nights.
The IRS also passed new rules regarding the chid tax credit, the HOPE scholarship and Lifetime Leaning benefits. Also, both parents who are divorced or separated can now take deductions on behalf of a dependent child even if the custodial parent has not released his or her claim of an exemption for the child.
I suggest you talk with your tax advisor to be sure you will get to claim your child or can take advantage of other deductions.
There are four (4) very distinct phases of emotion through which divorce litigants travel during their case. These phases are not strictly linear. In other words, people may travel thought one phase and then find themselves going back to that stage after they thought that it had passed. The stages are as follows:
1. Guilt/Denial-At the early stages of the divorce process it is very common for both spouses to deal with issues of guilt and denial. The initiating spouse may feel guilty for wanting the divorce and the non-initiating spouse may feel guilt over what he or she perceives their role to be in causing the initiating spouse to want a divorce. Additionally, the non-initiating spouse often tries to convince themselves that the spouse who wants the divorce is simply going through a "phase" and will come out of it. Sometimes the non-initiating spouse believes that the spouse who wants the divorce is suffering from some form of mental illness. While I have seen cases where mental illness did form the basis of the divorce, I have seldom seen that fact make a difference in whether or not a divorce occurred. The danger of the Guilt/Denial phase is that while in this phase, people are more likely to give up on the issues that are important to them because of the depression that they are experiencing. When the depression lifts, they are unhappy about the deal that they made, but it is often too late to make a change.
2. Anger-The second stage of the emotional journey in a divorce is anger. The nature of the anger phase is self evident. While it is important to ensure that no inappropriate acts are committed while under the influence of this negative emotion, anger can be an important motivator to ensure that people protect their interests during a divorce.
3. Bitterness-The third stage of emotional development in a divorce is bitterness. This emotion is the most destructive phase in the divorce process. For example, bitterness is often seen when a person refuses to agree to an issue which is good for them simply because their spouse is willing to agree to it. Other examples include a desire on one party's part to destroy the relationship between the children and the opposing party.
4. Healing. You will heal. I often meet with clients who feel as if their life is never going to be happy again. In many cases I see these same people in the community several months later. In almost every case the person who was grieving when I first met them is happy and pursuing new directions in life. Studies indicate that healing can take up to 5 years after a divorce is finalized. It is very rare that I see a person who just does not get better unless they are locked in the bitterness stage.
The important thing to remember about the grieving process as it relates to divorce is that as you move through the different stages, you recognize what you are experiencing. If you recognize where you are in the process you will not feel so alone or abnormal. Also, by analyzing your grief, you can approach the decisions in your divorce more objectively.
Spear, Wilderman, is a full service law firm with attorneys and staff committed to providing you with quality legal services. We look forward to serving you and your family's legal needs. Please call us at 856-482-8799.
Last Modified: February 12, 2008 9:02 AM
Published July 17, 2004
Separation, divorce, custody, payment of or receipt of child support, and the many other issues which flow from a relationship or marriage are emotionally charged issues which can cloud one's ability to be objective. It is in your best interest to seek out the services of an attorney and learn about your rights and obligations.
If there are children involved, the two of you will need to decide who will be the primary custodial parent once you separate. The next question to address is child support. Often, the party paying child support feels that the money he/she pays for the children is not used for the children, but is used by the custodial parent for his/her own expenses. Each of you needs to be realistic as to how much it costs to house, feed, clothe and care for the children.
It is more difficult to support two households than one. The custodial parent (payee) relies on receiving child support each week to meet expenses. The non-custodial parent (payor) often finds it difficult to meet the support obligation and to cover his/her own living expenses as well.
Problems often arise when the payor loses or quits his/her job or when the payee refuses to allow the payor to see the children because the support payments are late or not being made. Each of the parties involved needs to think what is best for the children.
Parenting time is another issue which creates problems between parents. The custodial parent may say that the children do not want to visit the other parent or say that the noncustodial parent does not exercise his/her visitation with the children. Whether or not there is a court order in effect setting out a visitation or parenting schedule, it is the obligation of both parents to exercise his/her parenting time and to encourage the children to see the other parent. If there is a court order in effect, each of you is obligated to comply with the court order and explain to the children that they need to see the other parent. Of course, if you are concerned about abuse or neglect, you should contact your attorney immediately to determine what steps should be taken to protect the children.
Neither party should dictate to the other what he/she is going to do in a situation. Instead, there needs to be a give and take when it comes to working out many of the problems which arise when there is a separation or divorce. There will be times when you may need to change the day of a scheduled visitation or will want additional time with the kids. If you have shown flexibility in the past, it may benefit you when you need it most.
Last Modified: March 27, 2006 12:23 PM
Show Me the Money - Child Support Enforcement
by Lois Schwartz, Esq.
Published July 17, 2004
One frequently asked question is "How do I go about collecting court ordered child support? My ex refuses to comply with court orders and is late with the child support."
It can be very frustrating when you do not receive the support for your children that the court ordered to be paid. There are steps that can be taken to try and collect child support. The person responsible for paying child support is known as the payor. The recipient of the child support on behalf of the child/ren is known as the payee. On your behalf as the payee, your attorney can request the Court to order that support payments be garnished; that is, that the child support be deducted from the salary of the payor. Counsel would then contact the Probation Department and set up an account on your behalf in order for the garnishment to go into effect. You would be provided a case number and could access a report of your case showing a payment history via the Internet.
The Probation Department would be provided with the name and address of both the payee and the payor as well as the name and address of the payor's employer, the names and ages of the children for whom the support is ordered, and a copy of the Court Order setting forth the support obligation. Once this information is presented to the Probation Department, the payor's employer would be notified to deduct the court ordered child support and forward it to the Probation Department.
Because of the volume of cases handled by the Probation Department, things do not move as quickly as one might like. It could take between 4 to 6 weeks after contacting the Probation Department before you would receive a check reflecting the garnishment from the payor's wages.
If you do not know where the payor works, or if the payor is unemployed, it is a bit more difficult to enforce the support order. If the payor is in arrears, on your behalf, your attorney would file a notice of motion to enforce the support order. The Court is then advised of the payment history of the payor and the amount of the support arrearage.
A copy of a Motion for Enforcement is served upon the payor which advises him/her of the return date this matter will be heard by the Court. The payor has an opportunity to respond to your request for enforcement. Often times, when an application is made to the Court for either an increase in support, or enforcement, the payor files a motion to decrease support. The basis for the decrease may be that he/she is unemployed or is earning less money than he/she was earning when the original support order was entered.
Upon the return date of the Motion, the Court determines whether or not the payor has the ability to pay the outstanding arrearage. If the Court finds that there is an ability to pay, the Court has various options. An order may be entered requiring the payor to pay a lump sum immediately plus an additional amount each week to be applied towards the arrearage. If the arrearage is substantial, and if it appears the payor has no reason for his/her failure to pay support, the Court can order the payor be incarcerated until the support is paid. Another means of encouraging a payor to pay support is to take away his/her driver's license or professional license.
Last Modified: March 27, 2006 12:23 PM
