Description: The following article mainly has the topic about nys child support login. Southern California Attorney Brian Thomas Mayer explains which parent gets to claim a child on federal income tax returns when custody is split between the parents.
My name is Brian Mayer. I am a family law attorney practicing throughout Southern California, the question I’m answering today is who gets to claim kids as dependents on their federal income tax when custody is split between the parents.
To answer this question, the first thing that we look at is what the custody order says and specifically how the custody order divides the custody time between the parents, let’s say that the custody order places 60% of the custody time with father and 40 percent of custody time with mother, in that situation father will get to claim the kids because the rule is that whoever has the kids at least 50% of the time is the one who’s going to be eligible to claim the kids as dependents on their taxes.
If the custody order clearly says that father has the kids at least 50% of the time, that is going to be persuasive in terms of what the custody division is, the next thing that we look at is what is the actual division of custody time, the actual division takes precedent, it takes priority over what the custody time is on paper.
Using the same example, the father on paper has custody of the kids 60% of time and mother has custody of the kids 40% of the time, but in actuality the kids are staying overnight with mother all the time, when she’s picking them up at school, they’re staying with mother, it’s 75% of the time.
In that situation despite the fact that the custody order says that the kids stay with father for 60% of the time, in actuality with mother it is 75% at a time, in that situation mother would be the one who’s eligible to claim the kids as dependents on her income tax return.
After we look at that, the next thing we look at is if the order specifically states that either parents may claim the kids on their taxes, that’s going to take precedent over everything, let’s using that last example, father has the kids on paper 60% of the time, mother has them on paper 40% of the time.
In actuality mother has the kids 75% of the time, but the order says that mother gets to claim the kids on odd-numbered tax years, father gets to claim the kids on even-numbered tax years, that last piece is going to take precedent over the custody split on paper, it’s going to take precedent over the actual custody split.
If it’s odd, an idea goes one parent, if it is even one year, it goes the other parent, that takes precedent, a lot of times we also see a situation where there are more than one kid, maybe father gets to claim the daughter on his taxes, mother gets to claim the son on her taxes, that’s how it’s spelled out in the order.
That’s what’s going to take precedent, that’s how it’s handled, you need to know first what the custody split on paper is, next what the actual custody split is, lastly whether the order specifically states that one parent and the other is able to claim the kids on taxes.
Another question that commonly comes up with this is what happens if one parent claims the kid on their taxes and they don’t have the right to do so, here’s what happens, let’s say that mother and father both file income tax returns, mother is entitled to claim the kids but father files and claims them, what will happen is that whoever files first is the one who’s going to initially get the deduction for the kids.
They’re going to be the first ones, whoever gets there first is going to be the one who claims them, when the second parent files as well, what’s going to happen is that both parents are automatically going to be audited by the IRS, it is not fun, you don’t want to do it.
Both parents are going to be audited by the IRS, the IRS will look into it, the parents will be able to present their information, ultimately assuming mother is in the right, she’s legally the one who’s able to claim the kids, she will get that deduction, father will have to pay back the IRS whatever he owes the IRS for having incorrectly claimed the kids as dependents.
The problem of this is aside from the gross inconvenience of being audited, oftentimes you have to wait months or possibly even years to get this straightened out, to any parent who is concerned that the other parent is going to incorrectly claim the kids as dependents on their income taxes, first and foremost get out there and be the first one to file.
That is the best thing you can do for yourself, simply because you don’t want to have to wait a potentially long time for that to get straightened out before the the IRS comes to right conclusion, get it out there first, but either way don’t worry about ultimately the IRS coming to the right conclusion.
Worry about the fact that you may have to wait until the the problem is straightened out, I hope that this was helpful, my name is Brian Mayer, I’m an attorney practicing throughout Southern California, I’m a family law attorney, feel free to get in touch with me if you need any any extra help, thank you.