How Divorced Ohio Parents Can Claim Dependent Children

Posted on: June 22, 2012

Many people going through a divorce have questions about what to do about claiming their dependent children on their tax returns. When and how a person can claim a child following a divorce depends on several factors.

In Ohio, Courts may accept the agreement reached by the parties. If no such agreement exists, the Court must then award the tax exemption to the parent for whom the exemption would serve to further the child’s best interest. There are several variables to this test including: net tax saving, the financial condition of both parties, the amount of time each spends with the child, the eligibility of either party for the earned income tax credit and a catchall category of “any other relevant factor.”

Judges should not automatically award the exemption to the party with the higher income; a real balancing test should take place. It’s also important to realize that at high-income levels the exemption is phased out, thus reducing its value to that party. The same thing occurs for those receiving the earned income tax credit, as they may not receive the full value of the exemption.

These Ohio specific rules can also be affected by the criteria set forth by the IRS. First, and fairly obviously, the child in question must actually be your child or a descendent of your child. This can be either through birth, adoption or foster parenting. The child in question is also permitted to be a sibling, half-sibling, stepsibling or a descendant of any of these.

The child also needs to be younger than 19, or 24 if he or she is a full-time student. Another odd but fairly obvious requirement is that the child be younger than the person claiming him or her. The only caveat to the age requirement is if your child is permanently disabled, in which case you can claim him or her as a dependent regardless of age.

Beyond these two factors, the IRS also looks to the child’s residency throughout the year. Typically, you are permitted to claim a child as a dependent if he or she resided with you for more than half of the year. Of course, in shared custody situations, this can get tricky. The residency requirement means that parents with primary custody of their child will usually be the ones who are able to claim them as dependents.

If additional factors have been met it’s possible for a non-custodial parent to claim a child as a dependent. First, the parents must be legally divorced, separated under a written separation agreement, or be living separately for at least the past six months. Second, the child must have received more than half of his or her financial support over the year from one or both parents. Third, the child must have been in the custody of one or both of the parents for more than half of the year. Fourth, the custodial parent who would otherwise be able to claim the child must sign a form declaring that they will not claim that child as a dependent for that tax year. The non-custodial parent must then attach this declaration to their tax return.

Determining exactly what “non-custodial parent” means is complicated. According to IRS rules, the custodial parent is the parent with whom the child lived for the greater number of nights in the year. If the parents separated during the tax year in question, and the child lived with both parents prior to their separation, then the custodial parent is the one with whom the child lived for the greater number of nights after the separation.

 In the rare event that a child spent an exactly equal number of nights with both parents, then, oddly, the custodial parent is deemed to be the one with the greater adjusted gross income.

If you find yourself facing the prospect of divorce, contact an experienced Ohio family law attorney who can help guide you through the difficult process. Count on the expertise of Twinsburg family law attorney Carol L. Gasper.

Source: “Claiming Children as Dependents After a Divorce,” by Amanda Gilloly, published at Patch.com.

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Attention Baby Boomers: Your divorced mom (or dad) may be entitled to additional Social Security benefits

Treasury Department Decision May Leave Those Behind on Child Support Penniless

Attention Baby Boomers: Your divorced mom (or dad) may be entitled to additional Social Security benefits

Posted on: June 8, 2012

For many senior citizens Social Security benefits are essential to not only their retirement but to their continued financial existence. If you’re a baby boomer in charge of helping with your parents’ finances or a retiree in need of income, then you should know that under certain circumstances you could be entitled to additional money from the Social Security Administration. If a woman (or a man, the law is gender neutral) is divorced or has been married more than once, or her husband delayed taking Social Security, she might be entitled to a bigger monthly benefit than she is currently receiving. Though the difference may not be enormous, it could be welcome relief to someone on a fixed income.

Though the Social Security regulations can affect both men and women, the fact that women typically earn less over their working lives means that they are more likely to be collecting less in benefits then they may be entitled to due to the earnings of a former spouse. The rule says that an individual is entitled to collect Social Security benefits according to one of the following formulas: 1) based on his or her own earnings history; 2) 50% of his or her spouse or former spouse’s benefit if it is greater than their own; or 3) 100% if the former spouse is now deceased.

There are a few specific requirements that must be met to receive this upward revision in benefits: 1) the marriage must have lasted 10 years or longer, and 2) the individual seeking a former spouse’s benefit must currently be unmarried, unless the second marriage occurred after the age of 60.

Enough with the rules, you may be asking how this would work in practice. Here’s a good example: Let’s say your mom only ever worked part-time while raising you kids. She’s now retired and receives an $800 per month Social Security check. Her former husband (your dad) made more money down at the plant, working longer hours over a longer span of time and now brings home a $2,000 per month Social Security check. Rather than continue collecting the $800, your mother is entitled to collect $1,000 per month if your dad is still alive and the full $2,000 if he is deceased. As an added bonus, if the Social Security Administration determines someone is eligible for increased benefits then that person will receive retroactive benefits going back for six months.

This increase in benefits is important not only for the senior in need of money but for the family members watching over their elderly loved ones. If you find yourself facing the prospect of divorce, contact an experienced Ohio family law attorney who can help guide you through the difficult process. Count on the expertise of Twinsburg family law attorney Carol L. Gasper.

Source: “Boosting Mom’s Social Security Payments,” by Ellen E. Schultz, published at WSJ.com.

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Treasury Department Decision May Leave Those Behind on Child Support Penniless

Move over gay marriage, the newest controversy involves gay divorce

Treasury Department Decision May Leave Those Behind on Child Support Penniless

Posted on: June 1, 2012

According to an article in USA Today, a big, though unanticipated change is in the works that could severely impact those behind on their child support payments. The change is the result of an attempt by the Treasury Department to reduce money spent by mailing out paper checks. The federal government will begin making government benefits payments electronically in March of 2013. This means that the paper checks that many rely on to shield a portion of their monthly income from states attempting to collect back child support will disappear.

States have long had the power to put a freeze on the bank accounts of those who are behind on their child support obligations. A relatively recent ruling by the Treasury Department also permits states to freeze Social Security, disability and veterans’ benefits that appear in the delinquent parents’ bank accounts. Once the decision to eliminate paper checks is implemented, some 275,000 people could lose access to all of their income.

This presents huge problems for a certain segment of the population, typically poor men substantially behind on their child support payments. There are plenty of instances where such payments are decades old and involve children who have long since grown up. Much of the money owed is for interest and accumulated fees. Of the money that is collected most will go to the states, not to the children of the men who were owed the money. States are authorized to retain this money as repayment for the years they spent providing welfare services for the children.

Beginning next March the Treasury Department will deposit all federal benefits directly into bank accounts or load them onto prepaid debit cards. No matter which method, state governments will then be allowed to access the money. States are currently allowed to garnish 65% of government benefits an individual is entitled to before they are disbursed. This same limit will not apply once the money has been wired to an account (or a prepaid debit card).

Though the goal is a good one, the chosen method will likely be counterproductive. Many of the men on the receiving end of this new payment system are already facing financial devastation in the form of eviction, foreclosure and aggressive bill collectors. People who owe large amounts of child support are almost exclusively poor and the numbers tell the tale: among those owing $30,000 or more, three-fourths had either no reported income or income of less than $10,000. By allowing states to seize their remaining income stream - federal benefits - these men may very well be left penniless.

Though there may not be much sympathy for the people behind on their child support payments, it’s important not to rush to judgment with overly punitive measures. If you find yourself facing the prospect of divorce, contact an experienced Ohio family law attorney who can help guide you through the difficult process. Count on the expertise of Twinsburg family law attorney Carol L. Gasper.

Source: “Rule could leave poor, delinquent dads with no income,” by The Associated Press, published at USAToday.com.

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Move over gay marriage, the newest controversy involves gay divorce

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Move over gay marriage, the newest controversy involves gay divorce

Posted on: May 25, 2012

Gay marriage is without a doubt a heated topic of conversation across the country these days. Between the recent remarks by President Obama and the decision by the voters of North Carolina, the controversial issue has been plastered across the front page for weeks now. It’s surprising then that the current controversy in Ohio’s legal community involves the prospect of gay divorce.

Like any other relationships, gay marriages can sometimes sour. Although gay marriage is not recognized in the vast majority of states, courts across the country are finding themselves forced to grapple with what to do when a legally married gay couple no longer wants to remain together. The issue presented itself very recently in Ohio when one judge decided to allow gay divorce in a state that doesn’t recognize gay marriage.

The two men, Jonathan Baize and Stephen Wissman, both from Columbus, Ohio, were granted a divorce in mid-March by a judge in the Franklin County Domestic Relations Court. Though gay divorce carries important, perhaps landmark, implications for the state one attorney who was present at the hearing described the proceeding as utterly “unremarkable.” No histrionics, just paperwork.

The men were married not long ago, on September 1, 2011, at a small ceremony in New York. They then returned home to Ohio to resume their life but soon decided that their marriage was not meant to last, a decision that might have important implications for Ohio law. In 2004, voters in the state approved a constitutional amendment that prohibited gay marriage. Backers of the 2004 amendment have argued that by authorizing a gay divorce, the Franklin County judge tacitly acknowledged the validity of the gay marriage.

Supporters of the judge turn to the language of the amendment and point out that current state law refers only to homosexual marriage and is silent with regard to same-sex divorce. The family court judge obviously agreed that the letter of the law did not prohibit his decision and thus decided to dissolve the men’s relationship.

While this instance of gay divorce may be among the first of its kind, it certainly won’t be the last time Ohio courts are forced to confront the issue. Legal questions surrounding the status of same-sex couples abound and will only grow more complicated as the gap between states that have approved gay marriage and those that have outlawed it continues to grow.

If you find yourself facing the prospect of divorce, it’s best to contact an experienced Ohio family law attorney who can help guide you through the difficult process. Count on the expertise of Twinsburg family law attorney Carol L. Gasper.

Source: “Married in New York, gay couple gets divorced in Columbus,” by Alan Johnson, published at Dispatch.com.

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Ohio Supreme Court Hears Same Sex Parenting Case ~ In re Lucy Mullen

Throw Away the X Label

Throw Away the X Label

Labels. Married, divorced, single, separated, or just confused.  The labels can make us happy, jumping for joy, or sad, searching for the right tone of blues to match the crazy foul mood.  More labels.  Traditional family; non-traditional family; broken family; single parent.  The "X" label.  This one doled out to the former spouse and his or her family with hexes on all of their futures.  So, you say, it's officially "ex" and not "X", but the point is, the word is a lot like "crackle" or "boom" as the word "ex" sounds like its  meaning, onomatopoeia for the slashing or crossing out or deleting of the once special someone from your life script.

But there are children of Xs, and surely, no one wants a hex on their futures.  Throw away the X label, in both thoughts and words, and you might understand that your former husband or wife wants to do something in the best interests of Susie and Johnny.  Throw away the X label and you might find yourself talking to your former husband or wife (who have first names) BEFORE they do that something with Susie and Johnny.  Throw away the X label, and that special something with Susie and Johnny could include you if you want it to.  Just a thought. 

Ohio Supreme Court Hears Same Sex Parenting Case ~ In re Lucy Mullen

            I just got done listening to oral arguments before the Ohio Supreme Court regarding co-parenting between same sex couples ~ In re Lucy Mullen ~ heard on February 2, 2011.  The Court will render a decision soon, but thought I'd post the link to the arguments.

            Ohio biological parents can give up their custodial rights to children in one of two ways:  sign a contract doing so; or act in a manner that clearly indicates intent to give up custodial rights. 

            In this case, the mother and her girlfriend appeared to have every intention of co-parenting.  However, when the relationship soured, the mother sought legal counsel and refused to sign a co-parenting agreement with the girlfriend; this was a key fact for the lower court in deciding that mother didn't, as a matter of law, relinquish custody to the girlfriend. 

           

            Counsel for the girlfriend seemed to argue, in essence, that if  through your actions you agree to co-parent, that is the same as giving away or relinquishing custodial rights. And you can't later change your mind in the legal sense by refusing to put that agreement in writing. 

            I've wondered whether the Ohio Supreme Court might use this case as a basis, for public policy reasons, to adopt a bright line standard that says:  if you want co-parenting rights, you must enter into a written agreement.   After hearing the arguments, and questions by the Justices, I'm not convinced that will happen.   

           Though new Justice Yvette Brown alluded to the confusion created by the wide variety of ways people can come to court and now argue there is a  non-written but valid parenting agreement,  Douglas Dougherty, attorney for biological mother, stopped short of requesting a "gold standard" requiring written agreements in these situations.  Instead, he seemed to say that courts are equipped to determine whether there is an implied contract based on facts and circumstances. Chief Justice O'Connor also pointed out that having agreements in writing is not a cure-all (lots of written agreements end up in court) and, further, that courts are in business to sort through facts and access credibility.  

         Looking forward to seeing how the Justices bring clarity to non traditional parenting.  

Same Sex Couples and Parenting Rights - Ohio Supreme Court Watch

          Two females become life partners with one of them becoming a biological mother through artificial insemination and the other taking on the role of the "social" mother, holding themselves out to the community as a family.  What happens when the same sex couple ends up in Splitsville?

            Do non parent partners have visitation rights in Ohio?   Last week, the Ohio Supreme Court dismissed without comment a case filed on behalf of a biological mother, Julie Smith, seeking the court's immediate determination that a juvenile court is without authority to allow a non parent social mother visitation rights. The matter will now return to Franklin County for a trial on the non parent social mother's motion for shared parenting leaving unanswered an important legal question as to whether existing statutes do provide lower courts with authority to order visitation for a non parent partner.

            When will a non parent partner have shared parenting rights?  In May of this year, the Ohio Supreme Court accepted the discretionary appeal of a case out of Hamilton County, In re:  Lucy Kathleen Mullen, which may provide some direction for same sex couples intending to co-parent children.  The case is to be scheduled for oral arguments yet this year.

            Under existing law, a parent can voluntarily give up his or her rights to exclusive custody in favor of shared parenting to a non parent in one of two ways.  First, a parent can enter into a written shared parenting arrangement with a non parent and petition the court for approval.  In the case of In re Bonfield, the Ohio Supreme Court held that a shared parenting agreement between a same sex couple will be judicial accepted provided that due consideration is given to all known factors in determining what is in the best interests of the children and the non parent is found to be a proper person to assume the care, training, and education of the child.   

            Second, a parent can by virtue of his or her own conduct and words give up exclusive parental rights.  While biological parents have constitutional rights paramount to non parents, numerous Ohio cases hold that a non parent may obtain custody of a child if there is a preponderance of evidence indicating that the parent contractually relinquished custody through words, acts or deeds.   However, as noted by the trial court in this matter, these cases tend to be situations where there has been a total relinquishment - not partial relinquishment.  In Lucy, the question for the Ohio Supreme Court seems to be whether there were words, actions and deeds to demonstrate  conclusively that the biological mother contractually relinquished a portion of her exclusive parenting rights.

            Facts in Lucy indicating that biological mother gave up some of her  exclusive parenting rights include:  non parent partner identified the sperm donor, helped pay costs for biological mother's in-vitro fertilization, was there with biological mother and all birth related appointments, was listed as a parent on ceremonial birth certificate, was named as a guardian for the child in biological mother's will and powers of attorney were signed indicating that bio mom considered social mom a co-parent in every way.  However, facts in Lucy indicating that biological mother did not give up exclusive parenting rights include biological mother 's repeated refusal to sign a written shared parenting agreement and her revocation of non parent partner's guardian designation and powers of attorney.

          It will be interesting to see how the Ohio Supreme Court decides Lucy.  Perhaps the Court will simply require that agreements be in writing, not relying on simply the words, actions or deeds of those involved.  After all, in 1991 Ohio eliminated the common law marriage, implied by a couple's holding themselves out as husband and wife.  In any event, the Court's direction will help all parties, biological parents, non parent partners, and  children alike, to eliminate the difficulty noted by the trial court in Lucy:  "It is difficult if even possible to determine how much or what portion of custodial rights a parent would be relinquishing when an implied contract encompasses only a share of custody and is not reduced to writing.”