Trying to get legal right to claim dependants every year

[aoverbagh]

What is the name of your state (only U.S. law)? New Hampshire

I am about to go to court for my final hearing. I am representing myself and I will be asking to claim my children on my taxes every year. My soon-to-be ex-husband wants to do every other year. The children reside primarily with me. Does this give me the legal right to claim them every year?

 

[mistoffolees]

What is the name of your state (only U.S. law)? New Hampshire

I am about to go to court for my final hearing. I am representing myself and I will be asking to claim my children on my taxes every year. My soon-to-be ex-husband wants to do every other year. The children reside primarily with me. Does this give me the legal right to claim them every year?

As always, the rules on this are very clear.

IRS rules apply 100% of the time. The divorce court can not simply override them. The right to the deduction goes to the parent who has the most overnights with the child(ren). A person who has the children less than 50% of the time can not claim custody under IRS rules (although the 50% number clearly doesn't apply for college students).

If both parents have equal number of overnights, there are tie breakers - such as the parent having the higher adjusted gross income getting the deduction. You can find the tie breakers on IRS' web site.

The party who is entitled to the deduction by the above rules may sign an 8332 form, giving the deduction to the other parent.

That's the law and it will be enforced. If there is no court order regarding 8332 forms, the above applies.

The only thing that a court can do is order the custodial parent to sign an 8332 form either some or all years. This simply becomes a matter of what one party can convince the judge is fair and/or in the best interest of the children.

Now, judges can look at it from a detailed, analytical viewpoint and try to calculate which option provides the greater 'group' income (which would, in general, benefit the children). That would generally involve giving some or all of the deductions to the parent with the higher income, although that's not always the case (in the event of very high income and AMT, the deductions aren't worth as much).

However, that's a pain in the rear and it also involves the assumption that increasing the entire 'group' income is advantageous for the kids - even though the kids may not see that if the noncustodial parent gets the extra money. Therefore, it is not uncommon for judges to simply say that the deduction should be split (if there are multiple children, one parent gets some of the deduction and the other parent gets the rest OR the parents get the deduction in alternating years). HOWEVER, the court can not order that one parent gets the deduction. All they can do is order that the custodial parent sign the 8332 form.

 

[LdiJ]

As always, the rules on this are very clear.

IRS rules apply 100% of the time. The divorce court can not simply override them. The right to the deduction goes to the parent who has the most overnights with the child(ren). A person who has the children less than 50% of the time can not claim custody under IRS rules (although the 50% number clearly doesn't apply for college students).

If both parents have equal number of overnights, there are tie breakers - such as the parent having the higher adjusted gross income getting the deduction. You can find the tie breakers on IRS' web site.

The party who is entitled to the deduction by the above rules may sign an 8332 form, giving the deduction to the other parent.

That's the law and it will be enforced. If there is no court order regarding 8332 forms, the above applies.

The only thing that a court can do is order the custodial parent to sign an 8332 form either some or all years. This simply becomes a matter of what one party can convince the judge is fair and/or in the best interest of the children.

Now, judges can look at it from a detailed, analytical viewpoint and try to calculate which option provides the greater 'group' income (which would, in general, benefit the children). That would generally involve giving some or all of the deductions to the parent with the higher income, although that's not always the case (in the event of very high income and AMT, the deductions aren't worth as much).

However, that's a pain in the rear and it also involves the assumption that increasing the entire 'group' income is advantageous for the kids - even though the kids may not see that if the noncustodial parent gets the extra money. Therefore, it is not uncommon for judges to simply say that the deduction should be split (if there are multiple children, one parent gets some of the deduction and the other parent gets the rest OR the parents get the deduction in alternating years). HOWEVER, the court can not order that one parent gets the deduction. All they can do is order that the custodial parent sign the 8332 form.

Misto, that was an excellent response, but I do have to correct one thing.

Due to EIC and the new rules on the Additional Child Tax Credit, it actually usually works out better, group income-wise, if the lower income parent claims the children, if the lower income parent is the custodial parent, up to as much as 43k in income if single/HOH and up to as much as 48k if married.

If the lower income parent is above those levels, then I would agree with your assessment.

For example, this year a single, custodial parent with only 10k in income, would get almost a 5k refund with just one child.

 

[mistoffolees]

Misto, that was an excellent response, but I do have to correct one thing.

Due to EIC and the new rules on the Additional Child Tax Credit, it actually usually works out better, group income-wise, if the lower income parent claims the children, if the lower income parent is the custodial parent, up to as much as 43k in income if single/HOH and up to as much as 48k if married.

If the lower income parent is above those levels, then I would agree with your assessment.

For example, this year a single, custodial parent with only 10k in income, would get almost a 5k refund with just one child.

That's why I said that it was necessary to work out the calculations in all cases.

In my case, the deduction was worth far more to me as the higher earning person - at least partially due to deduction for child care expenses which were of no value to my ex.

 

[Ronin]

... it is not uncommon for judges to simply say that the deduction should be split (if there are multiple children, one parent gets some of the deduction and the other parent gets the rest OR the parents get the deduction in alternating years).

I agree this would be the most likely scenario in a disputed situation, and a no-brainer for the judge.

 

[LdiJ]

That's why I said that it was necessary to work out the calculations in all cases.

In my case, the deduction was worth far more to me as the higher earning person - at least partially due to deduction for child care expenses which were of no value to my ex.

Child care expenses are a questionable issue. Only the parent with whom the child primarily lives is allowed to claim child care expenses...and that goes by number of overnights for the year. In a true 50/50 situation it can go by the parent with the higher income, but a true 50/50 situation is only possible in a leap year. I hope that your situation allows you to claim those expenses without risk of audit.