Divorced, can I use kids as dependents?

[mayhave2file]

I have shared custody of my 2 kids but the ex has residential custody. Can I still figure them in when I fill out the means test as far as living in the household? They are with my on weekends, summer and other days? It ups my food expense as well.

They would really bump me into a 7 and not a 13.

[magyar123]

This is not really a bankruptcy related issue but an income tax issue. If your ex can claim the kids as dependents on her tax return, and not you, you won't be allowed to consider them as your dependents in a bankruptcy filing.

[wonkettegirl]

It depends, and is something your attorney should be looking into. I share 50/50 custody with my ex, but I pay child support, so I was able to claim both children on my means test because I provide more than 50% of their support. However - in the divorce we agreed to each claim one child as a deduction. It was a negotiated point of the divorce, not what I am "technically entitled" to, but what I agreed to. If you are technically entitled to claim the children as dependents, if you provide for mroe than 50% of their support, then I believe you can claim them for purposes of the means test. My trustee didn't even question that I did.

[Flamingo]

Your support agreement and/or custody agreement will indicate what you do. Give a copy to your attorney. If your agreement states your ex claims the children as dependents on his taxes, you cannot claim them as dependents in your filing. Remember, you provide copies of tax returns to the trustee and all will be indicated on there. Discuss with your attorney.

[wonkettegirl]

Flamingo, that wasn't true in my case. I handed over my tax returns and the copy of the divorce agreement, which clearly show that I claim one child as a dependent for tax purposes but that I also contribute over 50% of support for both children. I used a "family of 3" for the means test.

Of course, the U.S. trustee may step in and object, but so far nothing has happened and the local trustee didn't even question it. My 341 was Dec 1, the local trustee filed a no asset report and kept me in my ch. 7.


So yes, discuss it with your attorney.

[2Bshinyandnew]

Flamingo, that wasn't true in my case. I handed over my tax returns and the copy of the divorce agreement, which clearly show that I claim one child as a dependent for tax purposes but that I also contribute over 50% of support for both children. I used a "family of 3" for the means test.

Of course, the U.S. trustee may step in and object, but so far nothing has happened and the local trustee didn't even question it. My 341 was Dec 1, the local trustee filed a no asset report and kept me in my ch. 7.


So yes, discuss it with your attorney.

Not true in my case either. I have residential custody of my son. My ex pays child support and alimony to me. We agreed that he will be able to claim the dependent deduction during years I have no income.

When he filed his CH7 a few weeks ago, he claimed me and our son as dependents on his BK petition. He lives in a separate household, but provides support for us both. His attorney never even asked for copies of the divorce/marital settlement papers. It seemed that the the driving issue was whether he was providing financial support, not actual custody/visitation/shared custody arrangements or income tax deduction agreements.

To the OP, do you pay child support, or is there some sort of child support order? If yes, then I would say you could claim the kids.

And of course, consult a few attorneys

edited to add: Actually, even if you do not have an order for child support, you may be able to claim your kids as defendants for BK purposes.

[Flamingo]

Flamingo, that wasn't true in my case. I handed over my tax returns and the copy of the divorce agreement, which clearly show that I claim one child as a dependent for tax purposes but that I also contribute over 50% of support for both children. I used a "family of 3" for the means test.

Of course, the U.S. trustee may step in and object, but so far nothing has happened and the local trustee didn't even question it. My 341 was Dec 1, the local trustee filed a no asset report and kept me in my ch. 7.


So yes, discuss it with your attorney.

Your agreement is not what I stated in my posting. If one parent always claims the children as dependents on their taxes and both share custody of the children, the person not claiming the children as dependents on their taxes cannot claim them as dependents on the BK. Unless there is specific wording in your agreement that both of you agree otherwise. Most support/custody agreements are cut and dry as to that. Your situation is different from that in that you can show you have a different situation with providing over 50% for both children. It's always best to have the attorney review any support/custody agreements and review who claims the children on their taxes and who is the main custodial parent. All situations are different...

[Taxed]

Honestly, this is something only a lawyer can address. In my state, custody agreements are not required when filing for divorce. My ex and I have a verbal agreement regarding shared custody and we switch each year who is claiming her for income tax purposes. There is no child support agreement in our case. There is no cut and dry answer here... In my case, I am able to claim my child as a dependent, but, like other have said, it depends on your individual case.

[mayhave2file]

Yes I do pay child support for both children but they reside at thier mom's. I can claim one as a dependent on my taxes as defined by our agreement. I do not provide maintenance anymore to the ex.