Need to file asap but need to know if i can count my 2 kids as members of my household even though they do not stay here all the time.. wife and i have been seperated not legally for 6 months.. i pay monthly support and provide insurance. Am i able to claim them even though i just have visitation
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I see where we just posted similar questions...I also have one kid that is going back and forth from a previous (non-legal) "divorce"...
Waiting to see what people say.
My GUESS is it is going to depend who claims who for tax purposes. Who claimed the kids this year on taxes?
Also, not sure if you are military (the jarhead thing), but there are some special exemptions for military. For instance, I just found out that we are exempt from being under the median and the means test b/c husband is less than 540 days post redeployment. Just sayin'. -
last tax return we were still together and claimed everyone.... this year only will claim 1 of the kids.... still think i should be able to claim cause i do provide support and a place for them to stay when hereComment
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This is actually a common concern because there is little Caselaw analyzing who is a member of a debtor's household. It appears that this issue has not been litigated extensively and there do not seem to be any decisions from this jurisdiction as of yet. Nevertheless some courts have addressed the issue. Some of the reported decisions make a distinction between the definitions of “household” and “family,” and which concept best applies to the means test despite the fact that the statute specifies “household” size.
When is Household Size Determined? One very recent Chapter 7 case from Minnesota, In re Ellringer, (official cite not yet available), held that the determination is to be made as of the petition date. However, a Kansas court, in the Chapter 13 case of In re Anderson, 367 B.R. 727, held the appropriate date to be the date of confirmation. It is likely that this analysis would hold up in our jurisdiction.
What Exactly is the Debtor’s Household? The Ellringer court looked at the definition used by the U.S. Census bureau because certain variables used in the means test are obtained from Census data. The court felt that the Census Bureau provided the most appropriate definition of “household” for use in the means test because this ensured that a household in the means test would have the same number of members as households used in the calculation of median family income for the purpose of the Census. The court also pointed out that Congress could have specified “family” size, rather than “household” size, but did not.
Census Bureau Definition of “Household.” 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.”
However, as you can see, the above definition is overly broad. Some Courts have rejected this approach and rightfully so. How can you include the income from a boarder as part of a family budget? The court in In Re Jewel, 365 B.R. 796, rejected the “heads on beds” approach as overly broad and instead adopted a definition limited to those household members financially dependent of the debtor. Accordingly, the best guidance to consider is whether the household members constitute a single economic unit. If they do, you should probably include them.
The Roommate Dilemma. When do you include non-family members such a roommates in the debtor’s household? This is one of the most common issues I see. Since a roommate is only involved in the debtor’s economic unit to the extent of contributing towards expenses, my suggestion is to not include the roommate as a member of the household, but to include the roommate’s contribution to the debtor’s household budget. On the other hand, if the roommate and the debtor are cohabiting as a family unit, that changes the picture.
Conclusion. Use good faith, reasonableness and common sense in determining whether household members constitute a singe economic unit with the debtor, and be prepared to support your position should the U.S. Trustee inquire.
Hope that helps---Comment
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