About this time of year, separated parents sometimes ask us who can claim the children on their taxes. Many parents simply agree that the parent that would get the most benefit can claim the children. Other parents have provisions in their orders directing the parties to claim or not to claim the children on their taxes. But what about when there is no agreement?
The position the IRS takes is that the person having the children more than half the year can claim the children. IRS Publication 504.
This means that the custodial parent, or the parent the children live with primarily, can claim the exemption.
So what happens if your orders say that one parent gets to claim the children and the other parent files first, claiming the children? Realistically, the parent that should have been able to claim the children is going to have a hard time. They will need to work with the IRS, the other party, and possibly an attorney well-versed in tax law to correct the issue. The parent could also file an enforcement action or sue for the lost benefit. The easiest way to avoid the issue? Speak with the other parent, or make sure you file first.
When parents can’t agree on who the kids will live with the Court will normally order a social study be conducted. This allows for a non-party, a trained professional, to look at the situation, the concerns of each party, and make a recommendation to the Court. That recommendation is the social study.
This expert will interview each party as well as watch the interactions between the parties and the kids. They will normally also interview other children or adults that are living in the residences of the parties (should there be any) and do a home visit of each parties home to make sure it is appropriate / safe for the children.
Once the expert is done, they draft the social study. In some jurisdictions, only the attorneys and the judge will see the result. This is because there have been times when parties have not liked the results of the social study and either share them with the children or even take out their frustrations on the children.
If you are going through a social study, be honest, participate fully, and make sure you comply fully with any requests. Talk with your attorney if you have questions.
A quick overview of the process in Dallas County can be found here.
Whether you are an attorney, a parent receiving child support, or a parent paying child support, you want to know that starting September 1, 2013, it is very likely that the cap on net monthly income used to calculate child support will rise from $7,500.00 to $8,550.00.
That means for one child, an obligor who ‘caps out’ would see his child support rise from $1,500.00 to $1,710.00 per month. That is a difference of $210.00 per month, $2,520.00 per year, and if a child was just born, an increase over the 18 years (at least) of child support owed of $45,360.00.
For obligors, it might be time to do a little additional financial planning – especially since that cap will likely rise again during the course of that child’s life.
For obligee’s, consider contacting the obligor and seeing if they would agree to forgo litigation and agree to the increase with an Agreed Order. That saves you both the time and money of going to Court.
The only thing constant … is change. Prior this change in the Texas Family Code, which takes effect September 1, 2013, you could not hold a person in contempt for failing to pay contractual alimony. You could have them held in contempt for failure to pay court-ordered spousal support, but not contractual alimony. For an in-depth discussion on the differences, click here.
Now you can. The Texas Legislature has amended the Texas Family Code to allow a person to be held in contempt for failure to pay contractual alimony up to the amount, and for the amount of time, that the Court could have awarded spousal maintenance. The Court can even issue a wage-withholding order, at least to that limited amount, which it could not do before.
What I do not know is how the Texas Supreme Court will react. Under their recent opinion, on which I wrote an article, wage-withholding order for alimony was denied based on that alimony being a debt, and wage garnishment for a debt other than child support or court-ordered spousal maintenance is barred by the Texas Constitution. That means that on September 1, 2013, we may very well have another law that contradicts the Texas Constitution. Who said family law doesn’t have constitutional implications? We will have to see what happens.
This post does not affect all counties – just those with associate judges, such as Tarrant, Dallas and Harris County, to name a few. The Legislature passed H.B. No. 1366, which amends multiple sections of the Texas Family Code by shortening the deadline to file de novo appeals of associate judge rulings from seven days to three days.
While the changes do not take effect until September 1, 2013, we might as well get in the habit of making sure the client knows there is a very limited amount of time to appeal that temporary orders ruling.
For those choosing to represent themselves, this means a very short turnaround if you get an adverse ruling in an Associate Judge’s courtroom and then want to appeal the decision or go hire a lawyer to appeal it.