The judge in my custody case entered an order that the non-custodial parent is to claim 51% of the child care expenses I incur throughout the year. He sees the children less than 50 days a year. He pays his child support but does not make any child care payments to the provider. The judge - putting all of her discretion to great use to negate my kids' best interests - also used a figure hundreds of dollars less than it actually is for child care expenses. It appears to me this order contradicts the federal tax code and I'm not sure what to do about it considering I have zero funds left to continue to pay an attorney to navigate these things. Please help!
An interesting question.
For starters, you are correct that, as a general matter, and in the abstract, the tax code only allows the deduction to the person who incurs the expenses, and a judge cannot change that. Also, the IRS is not bound by a divorce decree.
Under the court's order you are clearly allowed to continue claiming 49% of any otherwise deductible child care expenses. However, with respect to that 51%, the prudent course of action, I believe, would be to not claim that 51% because if you do you would be facing possible contempt of court proceedings for violating the custody order even if you are in fact the only person who can legitimately claim a deduction for that 51%.
My answer does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This disclaimer is intended to be fully compliant with the requirements of Treasury Department Circular 230 and the terms thereof are fully incorporated by reference.
I want to be sure you are clear on what the order states. The order may be relating to claiming the dependent child exemption and not child care costs. If a parent does not pay for child care (daycare) expenses, they typically don't and can't claim them on their tax returns.
Because it is extremely difficult to answer these questions in this forum without seeing the orders and knowing more about the case, I recommend that you consult with an experienced family law attorney in your area about the ruling. Remember that you have only 15 days from the date the ruling was filed to file a motion to reconsider the ruling.
The information provided is general in nature and does not create an attorney-client relationship.
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