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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 36125
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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If a divorce decree with three one parent takes two children

Customer Question

If a divorce decree with three one parent takes two children for tax purposes and other takes one. Each year they alternate
If parents agree in subsequent years that they are ok with one of the parents to claim two instead of alternating for this particular year would that be acceptable if done for tax purposes.
Submitted: 6 months ago.
Category: Family Law
Expert:  LawTalk replied 6 months ago.

Good afternoon Freda,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

A child may be used as a deduction for tax purposes in only one of two ways.

1. The court issued an order granting one parent to take the deduction regardless of whether the child resided with that parent more than half the year.

2. The child lives with the parent for more than half of the year and the parent pays for more than half of the living expenses of the child. In that case the parent is entitled to take the deduction.

What would not be allowed would be if the parent with less than 50% custody during the year and who was not granted the deduction by the court, attempted to take the deduction.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

I hope that I have been able to fully answer your question. As I am not an employee of JustAnswer, please be so kind as to rate my service to you. That is the only way I am compensated for assisting you. Thank you in advance.

I wish you and yours the best in 2016,

Doug

Customer: replied 6 months ago.
Divorce agreement says that for tax purposes regarding the three children that parents alternate years in which one takes two and other take one child as dependent. Does not say that the one that has custody enters into this
One has custody the mother and one pays child support the father The father contributes at least two thirds of the monthly expenses for the family including medical and education expenses. My question is if mother the custodian parents earns minimal income and mother does not have any objections to father taking the children as. Dependents for tax purposes since he is providing most of the support would that be allowed
Expert:  LawTalk replied 6 months ago.

Good morning,

Important note: Child support paid by the father to the mother does NOT constitute payment of living expenses by the father. It is a payment to the mother, and not the children.

Let me rephrase my answer so it is perfectly clear. Under IRS regulations in order for any parent to claim their child as a dependent, the child MUST live with that parent more than 50% of the time and the parent must provide 50% or more of the living expenses for the child. If the child provided more than 50% of their own living expenses because they have a job, the parent cannot claim that child as a dependent.

The sole exception for divorced couples is when an agreement in a divorce gives the deduction to a specific parent-----such as your agreement does, alternating years.

So, again, in your situation, because the mother is the custodian, and because the mother provided more than 50% of the child's living expenses (because the child is not employed and paying more than half of their own) unless this is the year for the father to have 2 dependent claims per the court order, then he only gets the one deduction. Under no circumstance can the mother EVER give all 3 deductions to the father in a single year----unless the children are all living with the father more than 50% of the year.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you so that I can be compensated for helping you. Thank you in advance.

I wish you and yours the best in 2016,

Doug

Expert:  LawTalk replied 6 months ago.

This seems like a very crucial matter for you, and your questions and issues suggest that an in-depth conversation might best suit your needs. If you are interested, for a very nominal charge I can offer you a private phone conference as opposed to continuing in this question and answer thread which is searchable and viewable by the public.

Please know that I answered your question in good faith, and with the expectation that you would act similarly and rate my service to you. If I have already provided you with the information you asked for and you have no additional questions, would you please now rate my service to you so I can be compensated for assisting you?

Thanks in advance,

Doug

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