Who claims the children on taxes during a Family Law case?

During the beginning of each new year, our clients often have questions regarding how their family law case will impact their taxes. One of the issues that parents going through a divorce or child custody case must resolve is which parent will claim the children on their tax return. The dependent exemption can result in big tax savings to the spouse or parent who is able to claim the children on their tax return.

The dependent exemption reduces the party’s taxable income. For the 2016 tax year, the dependent exemption is $4,050 for each child which is a substantial decrease in taxable income, especially if there are multiple children.

The IRS has clearly defined guidelines that answer the question of who will claim the children on their tax return. It is the “custodial parent” who will be able to claim the children on their tax return.

A custodial parent is defined by the IRS as:

“The custodial parent is generally the parent with whom the child lived for the greater number of nights during the year. The noncustodial parent is the other parent. If the child was with each parent for an equal number of nights, the custodial parent is the parent with the higher adjusted gross income”

During a divorce or child custody case, the custodial parent may release their claim to the dependent exemption. The custodial parent may desire to do this for various reasons. For instance, the custodial parent’s taxable income may be too high and thus the exemption is phased out or the parties may have agreed to alternate the exemption each year. If the custodial parent is releasing their claim to the exemption, then the custodial parent must fill out IRS Form 8332. This form allows the custodial parent to release their claim for one individual year, certain specific years (i.e. even or odd years), or for all future years. The noncustodial parent must attach Form 8332 to their return each year that they are claiming the children on their taxes. 

The issue of dependency exemptions in a divorce or child custody case is a complex issue. Family law cases can last over a year before there is a final resolution. Both parents may feel entitled to claim the children while their case is pending but absent a written agreement and a signed Form 8332, the custodial parent as defined by the IRS will be the parent who claims the children on their tax return.

It is best to discuss this issue with both an attorney and an accountant. If you would like to set up a consult with Christophillis & Gallivan, please call our office at (864)233-4445.

Does Fault in Divorce Effect Child Custody?

In South Carolina, the best interest of the child is the controlling factor in child custody determinations. Our family courts are routinely working with families in an effort to create child custody and visitation schedules that benefit both the parents and the child. Child custody should not be granted to reward or punish parents, but the fitness/unfitness of a parent or a parent’s ability to care for a child certainly play a role.

Typically, adultery does not have an impact on child custody determinations in South Carolina (other than in circumstances where the adultery directly effects the children).

Other fault-based grounds for divorce (i.e. Physical Cruelty, Habitual Drunkenness or Drug Abuse, and Desertion), however, can definitely impact a child custody determination. These fault-based factors often speak to characteristics of a parent that could be detrimental to a child’s welbeing. Sometimes, a parent exhibiting behaviors that would put a child at risk may be given an opportunity for rehabilitation in order to have a chance to regain custody or visitation rights. Courts can also place restraining orders on parental conduct to limit parent behavior and protect the best interest of the child. A parent who has previously been denied custody rights or has had their custody or visitation rights limited, may petition the court for a modification of child custody if there has been a substantial change in circumstances.

If you have questions about divorce, child custody, or visitation call our office to set up a free consultation.

Best Interest of Your Child

At Christophillis and Gallivan, we strive to help families develop custom child custody arrangements that fit your specific needs. Whether you are seeking an original custody order or a modification of your current custody situation, our attorneys work within the bounds of sole custody or shared custody arrangements to reach your goals.

South Carolina law, §63-15-240(B), requires the court to consider the best interest of the child in issuing an order for custody. The best interest of the child includes consideration of factors such as:

(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
(6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child's adjustment to his or her home, school, and community environments;
(11) the stability of the child's existing and proposed residences;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
(13) the child's cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
(16) whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
(17) other factors as the court considers necessary.

If you have questions about child custody or visitation, contact us to set up your free consultation.

JUDGE BROWN'S STANDARD VISITATION SCHEDULE

Judge Brown's Standard Visitation Schedule is a child custody and visitation schedule that is commonly used in Greenville, South Carolina and surrounding areas. All family law attorneys in the Upstate should be familiar with Judge Brown's Standard Visitation Schedule as most attorneys use this as a basis to begin a discussion with their clients about child custody and visitation. At Christophillis & Gallivan, we like to work with our clients to customize visitation schedules to fit each family's specific needs. We will walk you through the advantages and disadvantages of using Judge Brown's Standard Visitation Schedule and restraining orders to see if this schedule is the right fit for your family.

Judge Brown's Standard Visitation Schedule

If you have any questions about child custody, please contact us for a free initial consultation.