Claiming the Child Dependency Exemption and Tax Credit Post Divorce

     Mom and Dad have 2 children and get divorced in California.  They share joint legal custody; Mom has primary physical custody and Dad has "visitation" with the two children on alternate weekends, holidays, vacation periods and 1 night each week.  Dad pays mom court ordered "guideline child support".  The parties agree that Dad shall be entitled to claim the younger child and qualify for the Child Dependency Exemption and Tax Credit on his separate federal income tax return and Mom shall be entitled to claim the older child on her separate federal  income tax return.  The parties' Marital Settlement Agreement is approved by the Court and entered as a Judgment.  Dad claims the older child per the Order.   The IRS audits his return and disallows the dependency deduction and tax credit.  Dad appeals to the U.S. Tax Court.   Dad loses.  Why?  Because the IRS is a  rule driven agency and the rules require that Dad attach to his tax return IRS Form 8332, signed by Mom, releasing the dependency deduction and tax credit for the older child to him!!!  
    Helpful Hint:  Make sure your Judgment of Dissolution of Marriage/Marital Settlement Agreement requires the custodial parent to sign Form 8332 and deliver it to the non-custodial parent entitled to the dependency deduction no later than January 15 each year  AND further provide that if the custodial parent does not release the exemption and return the form, that the party entitled to the deduction can ask the Court, on an Ex Parte basis, to appoint an Elisor (usually the Clerk of the Court or his authorized deputy) to sign the 8332 release form on behalf of the custodial parent. 

Some Thoughts on Joint Legal Custody and School Enrollment

As the new school year starts our office is receiving many inquiries as to what does "joint legal custody" mean in California and, more specifically, which parent decides where the child goes to school?  In California there is a presumption in favor of joint custody (Fam. Code 3080-joint custody is in the best interest of a minor child...)  Fam.Code Section 3083 states that "In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent.  In all other circumstances, either parent, acting alone, may exercise legal control of  the child.  An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court."

The absence of  specificity in the Divorce Decree, Marital Settlement Agreement, or Judgment of Dissolution expressly stating which decisions: (1)  require the joint written consent of the parents, (2) which decisions either parent can make alone, and (3)  which decisions are reserved to a particular parent, often lead to the parties seeking  court intervention when one parent enrolls the child in a new school without the consent of the other parent.

More frequently the parties are  left with an Order that states that they  shall share decisions regarding the minor child's "health, education and welfare."  This is great if the parties cooperate with each other; but not so good if they can't communicate.   A non-specific order to share decision making responsibility is also not likely to be enforced by the remedy of "Contempt" since that type of order does not clearly set forth what the parent is to do or not do.  The uncertainty created by a non-specific order often results in the parent with primary physical custody making the decision about school placement.

Family Law Tips and Information: Social Security Benefits After Divorce

Family Law Tips and Information: Social Security Benefits After Divorce: "As a practicing divorce attorney in California I am often asked how does my divorce affect my Social Security benefits? This blog is not ..."

Social Security Benefits After Divorce

As a practicing  divorce attorney in California I am often asked how does my divorce affect my Social Security benefits?

This blog is not intended to give the reader legal advice and you should always check with a representative of the Social Security Administration to confirm your eligibility and entitlement to benefits.   Social Security Benefits are authorized under federal law.  As such, they are not divisible as community property in a divorce proceeding in California.  However, if you are divorced  you may be potentially  eligible for benefits based upon  your ex-spouse's Social Security record ( family law attorneys refer to this  as a  "derivative" benefit.)

There are requirements to be eligible for this benefit.  You must have been married to your ex-spouse for at least 10 years and you may not be currently married  to claim the derivative benefit. You may also be able to claim a derivative benefit if you are a widow(er) and remarried after the age of 60.  Additionally, in order to qualify for benefits based on your former spouse's earnings record your former spouse's benefits must be greater than you are otherwise  due based upon your own earnings record.

Let's assume you and your ex-spouse were married for more than 10 years, you are now divorced, you have not remarried,  and your former spouse is still alive.  You think you might want to claim Social Security benefits based upon his/her earnings record.  You may be entitled to spouse's benefits based upon your former spouse's earnings record  if: (1) you are 62 or older; and (2) your former spouse is at least 62 and eligible for Social Security. It is important to remember that  your former spouse does not have to be receiving benefits, only eligible to receive them.    Always compare what you would be eligible to receive, based upon your own earnings record versus what you would receive as a derivative benefit BEFORE you apply for  benefits based upon your former spouse's earnings record.  (Hint:  If you are going through a divorce now, obtain a copy of your spouses Social Security Earnings Record Statement-this is mailed annually by the Social Security Administration approximately a month before the person's birthday). The derivative benefit in this example, depending upon your age, would make you eligible for an amount between one-third and one-half of your former spouse's retirement benefits, assuming that amount is more than you are due based on your own earnings record. 

There are a number of  free publications discussing Social Security Benefits.   For more information online go to www.socialsecurity.gov/pubs