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IRS child deduction

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Nick123

Guest
What is the name of your state? New York

I am in the process of a divorce which should be concluded soon.
I collect child support for my two children and have primary residential custody with the father being allowed to have the children every other weekend and one night a week.
My question is whether the judge could award one dependent to the father for income tax purposes even though I am the primary custodian and according to federal law could claim both dependents.
Thank you
 


nextwife

Senior Member
MANY couples agree to the arrangement youy mentioned, Each parent claiming a deduction. They do that in recognition of the fact that a great deal of the money the CP is utilizung to support the child (and, in some cases, ALL of it) is really coming from the pockets for the NCP. Also, becaues in many cases, the benefit of the deduction maxes out, as the CP themsleves is not in a high income bracket, so the benefit to them of BOTH deductions, is far more moderate, than to the higher earning taxpater.
 
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PoDuck

Guest
Truthfully, I believe federal law requires that the deduction be swapped every other year. It may be my state, but I'm pretty sure my attorney told me that it was federal law.

Anyway, the EIC goes to the custodial parent every year except in situations of joint physical custody, where usually it is swiched off every year.

He probably has the right to keep the deduction, but not the EIC every other year, but not every year. If he does, and you don't want him to, you can both file for it, and the IRS can go after him for fraud, but most likely will just make him pay back what he stole.
 
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FJ1200guy

Guest
Look at this...

This link will give some info:

http://www.smartdivorce.com/articles/taxtips.shtml

It seems to say that the custodial parent always gets the deduction(s). Unless of course you make other arrangements.

So no, your ex cannot claim the kids. He can claim certain itemized deductions though... he can figure that out himself. :)

And the EIC can be used by the parent with physical custody, which is you I guess.... if you make less than a certain amount and pass the other qualification tests.

"As for the earned income credit, only the custodial parent can get the Earned Income Credit. A parent who does not live with the children cannot ever get EIC. The custodial parent can allow the non custodial parent to claim the exemptions, and get the child tax credit. Doing so will in no way jeopardize the custodial parent's claim to EIC. You will still report the child as a qualifying child on Schedule EIC, but not on Form 1040 in the dependent section."

So remember... it's the LAW that the custodial parent always gets to claim the kids as a deduction.

I hope this helps?

Lyle
 
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smh33

Guest
EIC/child deductions

Child tax deductions legally 'default' to the custodial parent unless other arrangements are in the custody agreement. Any parent can petition the court to grant the tax deduct or a plan of alternate years if able to afford the court procedure.

EIC is available to ANY parent that has physical custody 50% of the year. NCP, no custody agreement at all...if a parent houses their child 50% of the year's overnights, then that parent can claim EIC credit if meeting the income standard.....even if the other parent claims the child as a deduction! Now one may have to show proof of parent/child time which is why documentation is so important.
 

haiku

Senior Member
yes stealth is correct.

the IRS gives the deduction to the custodial parent BUT courts can and will grant deductions to NCP's in any number of ways, permanently (as in 'my" case), alternate yearly, or in the case of more than one child permanently giving each parent one child. because it sometimes makes better financial sense, and works as incentive fo rthe NCP to be current in support.

Therefore, if you as custodial take the deduction even though the court says you cannot. The IRS, may give you the deduction but you may find yourself in contempt in court, and will have to pay the NCP back what they lost, by not being able to claim thier rightful deduction.
 

stealth2

Under the Radar Member
hehe you beat me to my post, haiku!

If the court awards the NCP some portion of the deductions, the CP will have to sign a Form 8223 (I think) which is a waiver allowing the NCP to claim the deduction. I personally think it's quite reasonable to split the deduction(s) in some way. My ex takes one kid, I take the other.
 
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FJ1200guy

Guest
?

The only way the court will grant a deduction to the NCP is with the CPs okay, correct? Otherwise the court would be going against the law...
 
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smh33

Guest
Sorta...if the Cp agrees, great. If the CP does not agree this does not prevent the NCP from petitioning the court to grant the deduction by way of the custody order. Oh and the best way is if the CP agrees to the deduct...no court,no lawyers....the CP just has to sign off on the tax form...basically a consent to allow the NCP the tax deduct.
Just to be clear.....a parent can fight for this deduct and win. Just because the CP says no does not mean the judge will see it that way. The benefit of having the deduct placed as a standard in your custody order is that each year you do not have to go through negotiating with the ex.
 
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jez51

Guest
Re: EIC/child deductions

smh33 said:
Child tax deductions legally 'default' to the custodial parent unless other arrangements are in the custody agreement. Any parent can petition the court to grant the tax deduct or a plan of alternate years if able to afford the court procedure.

EIC is available to ANY parent that has physical custody 50% of the year. NCP, no custody agreement at all...if a parent houses their child 50% of the year's overnights, then that parent can claim EIC credit if meeting the income standard.....even if the other parent claims the child as a deduction! Now one may have to show proof of parent/child time which is why documentation is so important.
Only one parent can claim EIC, and the child has to live in that parents home the entire year.
 
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smh33

Guest
Jez51,

Please note that I never stated BOTH parents could claim EIC...I stated that either parent regardless of thier legally assigned titles due to custody can claim EIC IF child lived with them 50% of the year and they met the income guidelines. EIC only requires that a child lives with the qualifying parent 50% of the year unless this tax law changed this year, which I doubt.
 
Interesting info on the EIC...

My fiancé's divorce decree states that each parent gets one kid as a deduction and gets the EIC for the kid as well.

Hmmmm... I guess that was a waste of paper and ink.
 

haiku

Senior Member
actually no, the CP does not have to agree for the court to award the deduction. if it makes financial sense it makes financial sense, irregardless of what the CP wants or thinks is right.

I was once a CP, the ex automatically got the deduction because he made more money than I did. I did not agree to it, but I had no choice. Once I was making enough whereby the deduction would mean something to me financially I could petition for alternate years, but until then, it was not up to me to agree. And I was told I had to sign the IRS form on a yearly basis, as long as his support was current. I still got EIC

In my husbands case, different state, he gets all the kids every year period, no matter what she ever makes, due to his taking on all the marital debt and having to cash in all his ira's and 401k. She had to sign the IRS form for all future years. And it also was something she did not want to agree with. She gets EIC.
 
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smh33

Guest
Haiku...I am not sure if you are responding to me or another, but I think we are saying the same thing. Federally...the child deduct goes automatically to the CP. Now each state may expound on this by addressing the issue in thier cs guidelines,I am not sure how each state breaks down. I know in my state, the guidelines state the deduct goes to the CP no matter who pays what in cs. The only way to change the federal default to CP is to specify such in divorce decree, custody/support order agreements, ask the judge to award. Certainly I agree that a judge can award the deduct to the NCP against the CP's wishes...
EIC...seems we are saying the same again here.
Hope I am not misunderstanding.
 

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