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How does the state define having split custody of a child?

Salem, OR |

My husband's had a child in a previous relationship. They share equal custody and we pay for the child's health insurance benefits. Every tax year, she has the audacity to claim the child. We were asking to claim him at least this year because my husband never has and she already went ahead and claimed him. Can we fight this in any way?

Attorney Answers 3

  1. I believe you are referring to JOINT custody, 50/50 parenting time. Split custody means dad has one child, mom has the other. Please read my legal guide on my profile page of this website. It explains all the terms. The custody judgment should have dealt with who can use the tax exemption for the child. You did this by yourself, didn't you? Any decent attorney would have included the tax exemption issue in the judgment. Take the judgment to an experienced custody lawyer in your area and have him/her review it. Good luck.

    Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662. Please be aware that each answer on this website is based upon the facts, or lack thereof, provided in the question. To be sure you get complete and comprehensive answers, based upon the totality of your situation, contact a local attorney who specializes in the area of law that involves your legal problem. Diane L. Gruber has been practicing law in Oregon for 26 years, specializing in family law, bankruptcy, estate planning and probate. Note: Diane L. Gruber does not represent you until a written fee agreement has been signed by you and Diane L. Gruber, and the fee listed in the agreement has been paid.

  2. Generally the custody order will have specified who gets to claim the child on taxes, whether it's always the same person or changes from year to year. If the order says that your husband gets to claim the child and she claimed the child anyway, then you should speak to a family law attorney about how to deal with this issue.

    Keep in mind that both parents having equal time with the child may not actually be joint, or "split," custody. You should look at the order to see exactly what your husband's rights are. If it's joint custody, it means that both parents have equal say in making decisions as to how the child is raised. It may be, however, that only one parent has legal custody (and gets to make those decisions), even if the parenting plan gives the parents equal time with the child.

    Morgan Wren Long
    Dore Long, LLC
    (503) 683-3642

  3. Which parent gets to claim the dependency exemption for their minor child or children on his or her income tax returns is determined by the provisions of the federal tax code. A state court does not have the authority to determine how federal tax law should apply to the parties in a divorce. However, the parties themselves can agree how they want to deal with the dependency exemption(s) for their children and then that agreement can be included as part of a judgment signed and entered by the court. Once that agreement is included in a judgment that is signed by the court, then the parties have to obey or face a contempt of court action if they fail to obey. Such a provision in a judgment typically requires the parties to sign whatever IRS forms need to be signed to allocate the dependency exemption as provided for in the judgment. The bottom line is this. If you do not have a judgment that addresses the child dependency exemption issue and you want to know who should get the exemption(s), you should first consult your CPA regarding the applicable federal income tax law.

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