by Shawn Weber, JD, CLS-F* | Mar 29, 2013 | Uncategorized
Rules regarding who can claim a child on his/her taxes can be found in IRS Publication 596. In general, you can only qualify to claim a child for a tax credit or dependency exemption if the child has lived with you for over half of the year. For those parents that aren’t sure exactly how to file their taxes now that they’re divorced, it might be worthwhile contacting H&R Block for tax support. They can provide useful advice about claiming children on tax reports to make sure the report is done on time. Raise even has some promo codes for H&R Block on their website (go now). Hopefully, that will help.
Child care is difficult when parents are divorced, especially when it comes to tax. Sometimes in crafting child support orders, family law professionals and courts deliberately plan to give the noncustodial parent the dependency exemption and child tax credit. This is especially true if the support recipient has lower income and is in a lower tax bracket and the supporting parent is in a higher tax bracket. The party in the higher tax bracket may be able to make better use of the exemption and credit. Sometimes allowing that person to claim a child will enable us to order a higher amount of support because there is more disposable income available to pay support. It’s a win-win for everyone.
The IRS allows the noncustodial parent to claim a child if each of the following requirements are met:
“1. The parents:
a. Are divorced or legally separated under a decree of divorce or separate
maintenance,
b. Are separated under a written separation agreement, or
c. Lived apart at all times during the last 6 months of 2012, whether or not they are
or were married.
2. The child received over half of his or her support for the year from the parents.
3. The child is in the custody of one or both parents for more than half of 2012.
4. Either of the following statements is true.
a. The custodial parent signs Form 8332 or a substantially similar statement that he
or she will not claim the child as a dependent for the year, and the noncustodial
parent attaches the form or statement to his or her return. If the divorce decree or
separation agreement went into effect after 1984 and before 2009, the
noncustodial parent may be able to attach certain pages from the decree or
agreement instead of Form 8332.
b. A pre-1985 decree of divorce or separate maintenance or written separation
agreement that applies to 2012 provides that the noncustodial parent can claim
the child as a dependent, and the noncustodial parent provides at least $600 for
support of the child during 2012.”
IRS Publication 596 (2012) [http://www.irs.gov/pub/irs-pdf/p596.pdf].
Remember, without a signed Form 8332 or equivalent, the noncustodial parent may not claim the child.
This article is intended for informational purposes only and should not be construed as legal or tax advice. Remember, because every case is different, nothing replaces personalized advice from a professional. For further discussion of divorce and custody related tax issues, call attorney Shawn Weber at 858-410-0144 for a free telephone conference or go to his website at n4d.8c6.myftpupload.com/.
by Shawn Weber, JD, CLS-F* | Feb 13, 2013 | Uncategorized
The “Dolphin Lawyer” Shawn Weber
I was happy to make another appearance on the Real Estate Radio Hour on San Diego AM 1700 ESPN Radio. This time I was able to talk to hosts Ryan White and David McElveen about Collaborative Divorce, Mediation, deferred sale of the family residence and “nesting” where the kids get the house and the parents pack their bags instead of the kids. It’s a lot of fun to sit down with Ryan and David to talk about “Love and Real Estate” — especially right before Valentine’s Day!
Give it a listen and let me know what you think!
Here’s the link to the podcast: View in iTunes
Real Estate Radio 2013-02-12
by Shawn Weber, JD, CLS-F* | Jan 23, 2013 | Uncategorized
By Shawn Weber, CLS-F*
It is possible to get what is called a “deferred sale of home order”. California Family Code section 3800(b) provides for this option as follows:
‘Deferred sale of home order’ means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized under Sections 3900 and 3901 or under Section 3910, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.
Section 3800 and related sections basically codify the holding of In re Marriage of Duke (1980) 101 Cal.App.3d 152, 161 Cal.Rptr. 444. The Court in Duke wrote:
Where adverse economic, emotional and social impacts on minor children and the custodial parent, which would result from an immediate loss of a long established family home are not outweighed by economic detriment to the noncustodial party, the court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.
[Duke at page 155.]
In essence, the intent of the statute is to minimize the impact on the children by awarding temporary use and possession of the family residence to the custodial parent. (A “custodial parent” is the party awarded either sole or joint physical custody of a child. [See Cal. Fam. Code 3801 (a).]) This house is then sold at some future time.
Before the Court will make a deferred sale of home order, the court must first determine “whether it is economically feasible to maintain the payments of any note secured by a deed of trust, property taxes, insurance for the home during the period the sale of the home is deferred, and the condition of the home comparable to that at the time of trial.” [Cal. Fam. Code 3801.]
In making this determination, the Court has to consider each of the following factors:
(1) The resident parent’s income.
(2) The availability of spousal support, child support, or both spousal and child support.
(3) Any other sources of funds available to make those payments.
[Cal. Fam. Code 3801(b).]
The Family Code specifically describes the legislature’s intent regarding the economic feasibility test to accomplish all of the following:
(1) Avoid the likelihood of possible defaults on the payments of notes and resulting foreclosures.
(2) Avoid inadequate insurance coverage.
(3) Prevent deterioration of the condition of the family home.
(4) Prevent any other circumstance which would jeopardize both parents’ equity in the home.
[Cal. Fam. Code 3801(c).]
If the Court is satisfied that the deferred sale is economically feasible, then it has to ask the following questions:
(1) How long has the child lived in the home?
(2) What is the child’s grade in school?
(3) How close is the residence to the child’s school or daycare?
(4) Was the house modified to accommodate a disabled child or a disabled custodial parent?
(5) What emotional detriment would there be to the child if he/she changed residences?
(6) How close is the house to the custodial parent’s work?
(7) How financially able are the parents to obtain suitable housing?
(8) What tax consequences would be experienced by each party as a result of the deferred sale?
(9) What other “just and equitable” factors are there for the court to consider regarding a potential deferred sale.
[Cal. Fam. Code 3802.]
Once the Court has considered all of the required factors, then it can make its order. The order has to spell out the duration of the deferral and what each party has to do to maintain the residence. Usually, the “in-spouse” has to pay the costs of living in the residence to include the mortgage, property taxes, HOA, etc.
Now, the parties can always agree to a deferred sale without the Court ordering it if they so choose. They would just want to also carefully consider the factors described above as well. It would not due for a party to insist on a deferred sale of home order that simply was impossible financially.
One important point to consider: In my experience, the children are far less emotionally impacted by a move than the parents realize. It is important when considering a deferred sale of home order, to ask whether the deferred sale is desired because the kids need it or because a parent is having a hard time letting go of the house. Often it is better to just sell the house as soon as possible (you can visit https://www.housebuyersofamerica.com/sell-my-house-home to learn about a possible way of doing this). It is common for people ton entangle their emotions with things. Perhaps we will make seriously flawed financial decisions in order to hold onto a thing like a house. Remember to really think about the decision of a deferred home sale. If it doesn’t make sense financially-then it won’t help the kids either. In fact, an economically imprudent deferred home sale can hurt the kids a lot more than it will help.
Other resources regarding deferred home sales:
In re Marriage of Braud (1996) 45 Cal.App.4th 797, 53 Cal.Rptr.2d 179.
In re Marriage of Boseman (1973) 31 Cal.App.3d 372, 107 Cal.Rptr. 232.
In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 148 Cal.Rptr. 550.
In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 237 Cal.Rptr. 829.
For more information regarding a deferred home sale, contact attorney Shawn Weber at 858-345-1616 or visit our website at www.bravewebermack.com .
*Certified Specialist – Family Law
The State Bar of California Board of Legal Specialization.
