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As the Noncustodial Parent of  Long Island Divorce, Can I Claim My Children as Dependents on my Income Taxes?

Who can claim kids of Long Island divorce on taxesAs a Divorce Attorney on Long Island, I am often asked “who gets to claim the children on our taxes?” While you were married, it is likely that you and your ex-spouse filed joint income tax returns. You combined both of your incomes, and simply noted the number of children you had so you both were awarded the tax benefit of the children as dependents. However, along with a divorce comes the question of which parent can claim the children on their income tax returns, and how to make that decision. While you may automatically assume that the custodial parent is entitled to claim the children on his or her tax returns, this is not always the case and it is important to be aware of the possible outcomes.

Do You Have a Stipulation of Settlement in Your Long Island Divorce?

Many Long Island couples who are going through a divorce execute what is known as a Stipulation of Settlement. This document sets forth all the agreements you and your spouse have made regarding major issues, including child custody and support, what to do with the former marital residence, and property distribution.

An additional benefit of a Stipulation of Settlement is that you and your partner can include a section in the agreement concerning tax deductions and exemptions if you are both able to agree who will be claiming the children. What is becoming more commonplace is an agreement that the father will claim the children in odd years and the mother will claim the children in even years (or vice versa). If you have an odd number of children, such as three, it is not unheard of to permit the father to claim two children in odd years and one child in even years, with the mother claiming two children in even years and one child in odd years (or vice versa). Essentially, you and your ex-spouse can formalize any arrangement that you feel works best for you in your stipulation of settlement, and your Long Island divorce attorney may be able to suggest arrangements you had never thought of.

If Your Long Island Divorce Attorney Recommends Litigation

While you may want to execute a Stipulation of Settlement, it may be the case that you and your partner are simply unable to reach an agreement about one or more issues. In such instances, you can execute a Stipulation of Settlement for the issues you do agree on, and then may need to litigate on the issues you do not agree on. On occasion, the issue of which parent will claim the child as a tax deduction becomes an issue couples are unable to agree upon. In that case, the issue may require litigation. Although many believe that the custodial parent will be the one permitted to claim the child, that is not always the case; many consider that when both parents are contributing to the well-being of the child, and both parents should be entitled to the tax deduction.

Courts in New York have expressed this same sentiment. In Pachomski v. Pachomski, a Second Department case, both the custodial and the non-custodial parent were entitled to claim the children as dependents in alternating odd and even years for state and federal tax purposes. The Court reached its conclusion that “[w]here a noncustodial parent meets all or a substantial part of the child’s financial needs, a court may determine that the noncustodial parent is entitled to declare the child as a dependent” because both parents were wage earners and both contributed towards the support of the children. A similar conclusion was reached by the Court in Jurgielewicz v. Jurgielewicz. The father, who was the noncustodial parent was contributing “the majority[] of the financial support of the children.” The Court held that under the circumstances “[it] may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns.” Additionally, the Court expressly stated that “it is within the sound discretion of the court to direct that the noncustodial parent be entitled to the dependency exemption for the purposes of filing income taxes where the custodial parent has little taxable income and, thus, is unable to take full advantage of the dependency exemption.” See Mojdeh M. v. Jamshid A. Therefore, the court is permitted to look at the circumstances of each individual case and consider the income of each parent when deciding a tax deduction issue.

A tax deduction is essentially a benefit granted to parents when they file their income taxes; it recognizes the amount of money required to care for and support children. When the children’s parents are married, both file income taxes jointly and both reap the benefits. However, when parents are divorced, who will claim the child can become an issue, and that is when it is time to speak to your Long Island divorce attorney for possible solutions.

Contact an Experienced Divorce Attorney on Long Island to Protect Your Interests

The compassionate Long Island divorce attorneys at Robert E. Hornberger, Esq., P.C. are very experienced at negotiating Stipulation of Settlements that fairly protect your interests today and into your future. Contact us at 631-923-1910 for a complimentary confidential divorce and family law consultation or fill out the short form on this page and we’ll get right back to you.