Legal Question in Family Law in California

This should have been addressed in your marital settlement agreement or judgment. If it is not addressed there, you should look at the DissoMaster report attached to your child support papers. It will show the deductions as being given to one or the other parent. Although that is not binding, you would be changing the net incomes if you don't follow it, which would technically require a new support order. So for 2009 you should do what the DissoMaster reflects.

Going forward, both attorneys are correct and incorrect, but the first one is more correct in your case. It is unusual for there to be an exact 50/50 physical custody, so in that case the second attorney is right, the parent who has the children more than 50% takes the deduction unless the parties agree otherwise (which can be mutually advantageous when there is an income disparity). When there is a true 50/50 physical custody, however, the second attorney's answer doesn't answer the question. At that point the IRS looks to who provided more than 50% of their support. The first attorney is wrong, however, that who provided more than 50% of their support is the key. The IRS first looks to custody. Only if custody is 50/50 do they then look to support.

As I mentioned, however, the parties often allocate the deduction so as to maximize tax savings. When one spouse makes meaningfully more than the other, and custody is 50/50 or close to it, giving the deduction to the higher earning spouse will increase their net income, therefore increasing their child support payment, BUT it increases the child support payment by less than it reduces the payor's taxes. So both parents win and the IRS loses.

So the next time you modify or update your support calculations, try overriding the deduction allocation and see if it works in your case.