Legal Question in Family Law in California
My x-wife claims, that because she has higher mortgage and household expenses (utilities etc.) than I do, she is entitled to claim our son as a dependent every year. She lives in the original house, and I am in a condo paying a mortgage as well. Our divorce papers state 50% equal custody and equal contributions to raising our son, and no parent is required to pay the other alimony or child support. It is my understanding that regardless of the lifestyle or expenses that occur after the settlement, both parents should entitled to claim their dependents on alternating years. She is also getting more "house" in proportion to her "extra cost" than I am.
Is she entitled to claim our son every year because of these economic reasons?
2 Answers from Attorneys
It should have been spelled out in your custody and (non)support agreement. The answer to your question, though, is that absent a specific court order, the parent who has the child more than 50% of the time is the one legally entitled to the deduction. If the custody agreement says 50/50 and does not allocate the deduction, then if push comes to shove, you have to look at the actual time spent over the course of the year. No 50/50 ever is really exactly 50/50 when little adjustments, illnesses, business trips or whatever life brings over the course of the year are reviewed. So whomever had even an hour more time over the course of the year gets the deduction.
I agree with Mr. McCormick. The issue is not resolved by who has the bigger mortgage payment.
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