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Who Gets To Claim the Children?

One of the questions that is most asked in a child support or custody scenario is “Who gets to claim the children on income taxes?” A Mom and Dad can agree on who claims the deduction, or the Court can decide the issue.  However, the bottom line is that federal tax law determines who may actually claim the child or children even if a court order directs who gets the exemption.

The IRS has addressed when the noncustodial parent can claim the children in Publication 504, which discusses children of divorced or separated parents, or parents who live apart.

For tax purposes, the child is already the “qualifying child” of the parent that has custody. That means that the custodial parent can always claim the child. We’ll assume for this article that the Mom is the custodial parent, and the Dad is visiting. The Mom always has the right to claim the child, because she is the custodial parent. So, under what circumstances can the Dad claim the child? Well, let’s see!

The I.R.S. will grant Dad the right to claim the children if four conditions are met:

1.       The parents don’t live together, either because (a) they are divorced or separated under a divorce or separate maintenance decree, (b) they are separated under a written separation agreement, or (c) they lived apart at all times during the last 6 months of the year.

2.       The child or children received over half of his support for the year from Mom and Dad.

3.       The child or children are in the custody of one or both parents for more than half the year.

4.       Mom signs a document, most likely an IRS Form 8332, saying that she won’t claim the child that year and the Dad attaches this document to his taxes.*

As you can expect, number 4 above is the most important requirement. Even though the Court may award the deduction, the I.R.S won’t honor the court order if the above requirements are not met.  If the Mom does not sign the document, Dad does not get to claim the children. Hence, it is always important for the noncustodial parent or his attorney to include in the settlement and court order some language requiring Mom to sign Form 8332 to release the exemption.

*There are special rules for a divorce decree signed prior to 1984 that are not discussed here. 

you'd better find mr. magic!

Here's a synopsis of a Bill that was introduced to the Illinois General Assembly:

Provides that if the unmarried mother cannot or refuses to name the child's father, either a father must be conclusively established by DNA evidence or, within 30 days after birth, another family member who will financially provide for the child must be named, in court, on the birth certificate. Provides that absent DNA evidence or a family member's name, a birth certificate will not be issued and the mother will be ineligible for financial aid from the State for support of the child. Provides an exception for artificially inseminated mothers.  Provides that a family that does not comply with the Vital Records Act provision concerning birth certificates of unmarried mothers shall be ineligible for aid for support of the child. Effective immediately.

Let's just unpack this, shall we? If you are a woman who has a child and can't or won't name the father of your child, then within thirty (30) days, some gentleman (the one that can't or won't be named, remember?) has to appear magically to be established by DNA evidence. OR, if Mr. Magic doesn't show up, another family member who will take care of your child must be named in court, on the birth certificate. Presumably, the person who can be either a woman or a man who isn't the father, will be responsible for child support. For the child that isn't theirs. Does this also mean that the child could take this person's last name? Can the child inherit from this person? Since that person is a "parent" on the birth certificate, where do they stand as far as custody is concerned? 

Now, what happens if Mr. Magic or another family member (probably the Grandma, let's keep it real) doesn't step up to aid the mother and sign up to pay child support until the child reaches the age of majority? Well, then the Mom can't get a birth certificate for that child, nor will she be able to get any type of aid from the state for that child. Let that marinate. The Mom cannot have a record of birth of her child if no one agrees to be financially responsible for him or her, which basically means that the child is non-existent. So, does that mean that the child can't enroll in school? Because you need a birth certificate for that. Does that mean that the child can't play sports? Because you need a birth certificate for that. Does the child get a social security number? Because, yeah...you need a birth certificate for that. It also means that the child can't get any aid from the State. Does that include state sponsored college scholarships? Grants? Free school lunch? Insurance? Where does the denial of state assistance begin and end? The ramifications of the passage of this bill could, and probably will, reach that far.

Let's go further and look at who this excludes. Not rape victims. Not victims of child trafficking or other sex crimes; only those who could afford to be artificially inseminated.  Read: The people with money. So, if you're a rape victim, you get to raped one time by a criminal, then your child gets to be raped by the State of Illinois. 

The same people who don't want you to have an abortion want you to give birth to a child so that they can then deny it's existence. And this is okay because after all, you're obviously just a poor little whore who doesn't deserve anything if you don't live up to their idea of family values.  

Anyway, since this is a family law blog, let's not turn this into an opinion piece, and let's instead talk about how this effects family law. Tomorrow. Let me hear your opinions first. 

Should I hire the $500 divorce lawyer? Here's why we say NO!

An uncontested divorce is normally done for a flat fee. There are some firms that advertise uncontested divorces for a nominal fee of $350.00 - $500.00.  Beware of those!  

You should keep in mind that this cheap divorce normally only includes the drafting and mailing of the initial paperwork.  It does not include the fee for filing your divorce with the court, and in Tennessee that fee is more than $300.  Think about it. Is a lawyer really going to take $500 to do your divorce, then turn around and spend more than half of the money? NO!  Therefore, even after paying this $500 fee, your divorce isn’t filed.  The only thing you've paid for is the drafting and mailing of your paperwork. 

Now, what if your spouse never mails it back? Well, nothing happens and you've lost $500. What if your spouse disagrees? You're typically then charged more, or they won't move further on your divorce, because it is then viewed as a "Contested" divorce. 

At Hackett Law Firm, our uncontested divorces begin at $1250.00.  We actually draft and file your uncontested divorce immediately, follow up on the mailing and signing of your separation agreement and parenting plan, and appear in court on your behalf.  Plus, we pay your court costs! There are no hidden fees, and there is no wait.

Have your divorce done by a firm that will begin it and end it for you. Divorce is understandably hard, even when you agree on everything. Choose a firm that will be by your side until it's done. 



Private Investigators and Divorce

I once had a divorce where the husband was committing adultery. It was out, in the open, he didn't care who saw, and he wanted to be divorced. So much so, that he actually moved his girlfriend into the house. My client wanted pictures and evidence. She wanted to follow them around town and catch them holding hands. My question: Ma'am? For what? I'm willing to bet that he will sit on the witness stand and admit that he has committed adultery without a care in the world. 

So, under what circumstances do you need this evidence, or to spend money trying to collect it? I would suggest that it's only when you need to bolster your grounds for divorce in order to actually convince your spouse that you will win if you have to prove grounds. Another scenario might be if you need evidence of moral conduct in a custody dispute - but remember, bad spouses don't automatically make bad parents and judges know that. 

Just remember that real life isn't T.V., and private eyes aren't free, nor are they on your lawyers payroll. Always get the advice of your lawyer before you decide that you need to hire an outside source to assist in your divorce. They will be able to tell you whether it will help, hurt, or simply be a waste of your money

Divorce is not Punitive

Thought for today: Divorce is not punitive, even though your feelings are hurt.

People are divorced for many reasons. There could be an unfaithful spouse, domestic violence, and a number of other hurtful things that have caused a marriage to dissolve. Many people believe that the level of hurt, or the wrongdoing that caused the divorce is directly related to the terms of the divorce. It isn't. The grounds for divorce have little to do with how the property is distributed. For example, if your Husband cheated on you, you shouldn't expect to "make him pay" in a divorce. The fact that he cheated does not mean that he will have to hand you everything in a divorce. Your property is still going to be distributed according to the law, regardless of how the marriage ended. Don't go into a divorce with a vengeance, because you will rarely get that satisfaction.