Can I count my son as a household member

[thewizard]

I would have thought how many people in your household should be a easy question, but I usually answer this question if asked as 1.5 (which is not a valid answer in this case). I'm not sure how the law looks at it.

Here is the situation:
-I live in Illinois.
-I am divorced
-My ex wife has custody and claims him on her taxes.
-My son lives with me just under 1/2 the time (12 out of every 28 days. He does stay with me overnight)
-I pay child support
-I pay 1/2 of his childcare expenses, education expenses, and medical expenses, plus insurance for him.

In my eyes he should count, but not sure how they will look at it.

[HHM]

Let's back up...does it matter?

Do you need to have a 2 person household to make your BK work for some reason?

[destitute]

I think it depends on your local court. I'm in ohio and have the exact same situation as you. I was allowed to list my son for the means test.

[HHM]

The courts tend to accept the Census definition of household. But right now, I don't have time to track it down. This questions has come up before in this forum and I think a link to the case or to the Census website was in that post.

[justbroke]

While "household" is not defined in the Bankruptcy Code, the majority Courts agree that the definition of "household" is the Census definition, for purposes of calculating if you are over/under the median based on your annualized income on the Means Test.

Ellinger is the reference case for the "Census" definition when determining "household size"... In re Ellinger, 2007 WL 1976750 (Bkrtcy.D.Minn.).

However, the majority Courts also agree that for purposes of what your allowances are, the IRS definition of household is what applies. On this front, the UST has collaterally attacked cases where the Debtor attempted to use IRS (IRM) expenses where they enjoyed no familial or legal bond with the dependents. See In Re Mastromarino, 197 B.R. at 178. In Mastromarino, the judge stated "[t]o grant such voluntary expenditures priority over existing legal obligations [to creditors] would be to permit [the debtor] unilaterally to subordinate his creditors to his personal lifestyle choices." Id.

What get confusing, is that while just about anyone counts as part of the household, so does their income, to the extent that they contribute to the household. What really gets this confusing is if the non-related household member contributes nothing to the household, and the debtor pays for all the expenses (or even the majority of expenses). That's when the case above becomes more controlling.

As for this issue at hand, just about nothing I write above relates to this joint custody issue. I was just giving references to cases that define "household" and also look bryond that definition. Sorry for jumping in!

[OhioFiler]

My ex and I have shared parenting and our child spends time with both of us. Our attorney said just to provide her a copy of the separation agreement and the divorce decree and it will be no problem to include the kid as a household member.

[thewizard]

From my divorce agreement my son only stays with overnight 4 out of every 28 days, not 12 and is with me until 8 pm the other 8 days. We have increased this over the last 3 years, but never updated the paperwork. So I'm not sure the divorce paperwork helps.

Even after looking at the census definition (I'll put what I found below) I'm confused because it refers to all people who "occupy" a housing unit without explaining how to determine if the person actually occupies it.

If you ask my son (who is 10) where he lives he'll say he has two homes. Since I pay 1/2 his medical and childcare expenses, all of his insurance, cover his food and clothing, utilities etc when he is with me, plus pay support I'd say that from a perspective of what my reasonable expenses are he should count.

It makes a difference because I easily pass the means test with a household of 2, but not for a household of 1.

___________________
The Census Bureau defined “household” as follows: A household consists of all the people who occupy a housing unit. A house, an apartment or other group of rooms, or a single room, is regarded as a housing unit when it is occupied or intended for occupancy as separate living quarters; that is, when the occupants do not live and eat with any other persons in the structure and there is direct access from the outside or through a common hall.

The definition continues: A household includes the related family members and all the unrelated people, if any, such as lodgers, foster children, wards, or employees who share the housing unit. A person living alone in a housing unit, or a group of unrelated people sharing a housing unit such as partners or roomers, is also counted as a household. The count of household excludes group quarters. There are two major categories of households, “family” and “nonfamily.”

[OhioFiler]

Then you include him. It won't be a problem. You provide food, clothing, healthcare and maintain living quarters for him. You'll be fine.