Divorce is Unfair!

Question: Ralph, I was instructed by your staff to send you an E-mail question.

I am recently divorced (2010), with two kids.  I had 50% custody of my kids until late August 2011.  Due to proximity of school to mom, she now has kids more during school time (9 days in rolling 2 week schedule).   I have 50% time in summer.  I pay significant child support, including half of the Daycare costs.

The way I read the federal tax code last year, if parents have equal time with children, the parent paying child support (and higher income) may have all child credits. When I filed in April 2011, I gave my exwife one of the child tax credits since she asked, and i took one, since this seemed fair.

Now my ex wife is refusing to allow me to have the same arrangement this year.  She is planning to take both credits this year. 

Is there any way you can prepare a tax filling for me this year, which will allow me to have at least one child tax credit.  Our divorce papers are silent on this, and my lawyer said a good tax account may be better than a legal court argument.

Please help.

 
Answer: This is a really tough situation, but a situation we seem to see more often these days. Here is a great answer that I found on About.com

Qualifying Children

To be claimed as a qualifying child, the person must meet four criteria:Relationship — the person must be your child, step child, adopted child, foster child, brother or sister, or a descendant of one of these (for example, a grandchild or nephew).
Residence — for more than half the year, the person must have the same residence as you do.
Age — the person must be

• under age 19 at the end of the year, or
• under age 24 and a be a full-time student for at least five months out of the year, or
• any age and totally and permanently disabled.

Support — the person did not provide more than half of his or her own support during the year.

Some Tips about Claiming Qualifying Children

The qualifying child must live with you for more than half the year. More than half a year means, at minimum, six months and one day. If you share custody, you may want to keep a log of where the child spends the night in your calendar or day planner. The new rules state that the qualifying child must not provide more than half of his or her own support. This is different from the old rules. Under the old rules, the taxpayer had to provide over half the support for the child. The change makes it easier for families relying on public assistance, charity, and gifts from family members to claim a dependent.
You might still be able to claim the child as a qualifying relative if the child does not meet the criteria to be a qualifying child. But the qualifying child rules always prevail over the qualifying relative rules. So you'll want to make sure the dependent would not qualify as a qualifying child for someone else before claiming a qualifying relative on your tax return.

Tie-Breaker Tests for Claiming a Qualifying Child

If two or more taxpayers claim a dependent as a qualifying child in the same year, the IRS will use the following tie-breaker tests to determine which taxpayer is eligible to claim the dependent. The tie-breaker tests are listed in order of priority.The child will be the qualifying child of:

• the parent,
• the parent with whom the child lived for the longest time during the year,
• if the time was equal, the parent with the highest adjusted gross income,
• if no taxpayer is the child's parent, the taxpayer with the highest adjusted gross income.

Some Additional Tips for Tie-Breaker Situations

A child can be the dependent of at most one taxpayer. If you qualify to claim the child, then be ready to submit documentation to the IRS to support your claim.Chances are the child will spend at least one day more with one parent than the other parent, since there are usually 365 days in a year. Consider keeping a log of where the child spends the night.
If the child spends exactly equal time with both parents, the parent with the higher income will be able to claim the dependent. Both parties can prevent an IRS audit by reviewing these tie-breaker rules in advance, and agreeing on who gets to claim the dependent.
The non-qualifying parent can claim the dependent ONLY IF the qualifying parent releases his or her claim to the dependency exemption. You accomplish this by using IRS Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents (PDF document). You can indicate on this form for which year or years you agree to release the exemption. You can also revoke the release if you later change your mind.


For more specific assistance with this and many other tax issues, contact Ralph V. Estep, Jr., of Saggio Accounting+PLUS at 302-659-6560 or you may visit our web site at www.saggioaccounting.com.