Age Appropriate Child Custody Arrangements

March 21, 2017

Age Appropriate Child Custody ArrangementsWhen it comes to setting a custodial care plan for children of divorcing parents, there is no end to controversy with regard to what is best. Decision-makers, influencers, researchers and clinicians differ a great deal when it comes recommending the ideal parenting arrangements in a divorce situation.

What all experts do agree on, however, is that children do best when their parents get along well and the children feel that they are being parented together by both mom and dad, as a team.

This handout is not intended to be fully comprehensive, nor is it intended to pre-determine what is best for your child or children. It is, however, a compilation of recent research and conclusions that I have read and heard time and again over the many years that I have been in the family law and mediation field.

Please know, however, that these findings are not necessarily representative of what is going on in the courts. Instead, these findings are more representative of what neuroscientists, human development experts and psychologists are finding to be true about the effect of various parenting arrangements on children of divorce.

When establishing a custodial care plan for your child, it is important to customize a plan that best fits your child’s present needs, bolsters his or her sense of security, as well as helps in the development of the relationship skills for now and the future.

When crafting your parenting arrangements, many clinicians will tell you that children do not count days or hours. They count quality of time. Bickering over make-up time and ensuring a quantifiable 50/50 split, for example, does little to assist your child in becoming a happy, emotionally healthy and balanced human being. They will remember the squabbling; not the number of days missed with Mom or Dad.

They count on whether or not they feel that their parents are always be there for them, without fighting and harsh words to each other, and whether their home life feels somewhat “normal” in relationship to their friends and neighbors.

Infants & Toddlers (0 -2.5 Years):

Infancy is a time for building attachments. Without strong attachments, a child will grow up to have difficulty bonding with and forming relationships with other people. Another primary developmental task for infants is to form trust in the environment, which requires consistency in both the caretaker and the baby’s home.

  • Only about a quarter of an infant’s brain is developed at birth. The actual structure of a baby’s brain is formed in large part as a result of his/her human relationships.
  • Many experts believe that there should be a primary caretaker. This is because infants and toddlers cannot maintain the image of their primary caretaker for long and this can cause extreme stress and confusion to a baby or toddler, who may already have outside caretakers in his or her life (such as daycare, nannies).
  • Many experts believe that the mother is the best choice for the role of primary caretaker. This has to do with the theory that a mother’s brain is better wired to help an infant develop his/her ability to regulate and cope. This is related to the fact that an infant’s right brain (which reacts to deep primitive feelings) is more developed at birth than the left (thinking) side. In other words, many experts believe that mothers have a better innate capacity to” tune in” to infants than do fathers. This comes from new neuroscientific research and is not necessarily accepted by other disciplines or the courts.
  • It is essential that babies and toddlers have frequent time with the noncustodial parent in order for them to bond with that parent—which will be essential when that baby grows into a preschooler. 

Preschoolers (2.5 – 5 Years):

This is a time of continued growth and individuality. This is typically the age where time away from the primary caretaker should increase, and overnights with the noncustodial parent are recommended to become more frequent and regularized (if the child is being raised in a primary-caretaker style).

Some parents begin 50/50 custody at this age. This type of arrangement needs to be carefully considered in terms of the child’s personality, how well the parents get along and how close the parents live to one another.

  • As preschool-aged children start becoming more and more curious about their physical world, many experts believe that lots of time with their fathers is essential to help their preschoolers explore, take risks and investigate their body’s relationship to their environment
  • Preschoolers’ have much greater development of the left side of their brain than do infants and toddlers. This makes it easier for fathers to “tune in” to their children. Fathers and toddlers, some believe, are “wired” to be together and this is the time when the lack of a father can be hard on children in terms of meeting their development needs.

Children (6-8):
This period of development is focused on peer and community relationships. It is important during this stage of development for the noncustodial parent (if that is the parenting arrangements) to be part of the activities that his or her children are involved in. At this stage, children thrive on consistent contact with friends, school, and extra-curricular activities.

  • In non 50/50 custody arrangements, many experts believe that the parenting plans should include multiple overnight visits per-week with the noncustodial parent.
  • However, if a child is distressed by being away from the other parent, it is recommended that the time away should be decreased to a tolerable level, at least for a period of time.
  • If a child tolerates the stress of living in two homes, however, this can be best in terms of his or her opportunity to form strong bonds with both parents.
  • Time spent in your child’s “orbit” is important. Children at this age are watching everything you do. More often than not, children learn more by being around you and seeing how you handle life than they do from what you try and teach them directly.

Pre-Teens (9-12):

During these years, children develop their academic, athletic, and artistic skills. The noncustodial parent (if that is the parents’ arrangement) is advised to schedule time with their child, as much as possible, within the orbit of the child’s home base. In 50/50 custody situations, children still tend to have a “home base” — in terms of schools, activities, friends and where they feel most “at home” — and the other parent will need to develop a comfort level with spending time where the child has built his or her world.

  • Parent-child time needs to allow for the pre-teen’s social life, academics, sports and other extracurricular activities.
  • Parents often find themselves more of a “chauffeur” than a parent at this stage of their child’s life; but driving your children to their various activities is often a good time to talk and share. Volunteer for carpools – you will learn a lot about your children’s friends this way and also get to know the other parents in your children’s circle.
  • It is important for both parents to maintain a strong role in their pre-teen’s life. This fosters a healthy and lasting relationship with both parents. Strong parental bonds are key to a child’s ability to form relationships with others, both now and throughout their lives.

Teenagers (13-18):

This period marks the beginning of psychological emancipation as children rapidly begin establishing their personal identify. Though parents are usually settled into a routine of care for their child at this age, that may change as these teenage children seek to have input into their parenting arrangements. The priorities for these young people are their social lives, academics, and their extracurricular activities. Spending quality time with Mom or Dad is not on their minds, like it may be for their parents. The pressure of having to make space in their busy lives for “quality time” with two parents, in two separate homes, may be a source of irritation and resentment for your busy teenager. Creativity is key at this time in order to stay in tune with your child, while at the same time respecting his or her need to grow-up.

  • The custodial care schedule will need to be flexible in order to work with the teenager’s complex schedule.
  • It is important to consider the teenager’s need for his or her own agenda, as this is a part of maturing and establishing independence.
  • It is important to stay involved in the teenager’s activities such as academics, sports, arts, etc. This is important in order to maintain a healthy relationship with your teenager, show that you care, and know the people who your child is spending time with.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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Tips for Writing a Child-Centered Parenting Agreement

October 29, 2013

In cases where parents choose to share the custodial care of their children, it can be tricky to map out the best way to split up your children’s time between both parents. The hackneyed “every other weekend” may have worked in the past, but I rarely see this as a desired outcome for my clients in my mediation practice.   We now know so much more about the positive aspects of children having two involved parents – and both parents usually have work obligations outside of the home – that having both parents involved makes the most sense. When deciding how best to share the custodial care of your children, there are a lot of variables that you should take into account before committing to those parenting arrangements in the form of a court enforceable Settlement Agreement.

1. Should you get your child involved?  You know your child better than anyone, so ask yourself, “Are they mature enough to formulate an opinion on this matter?” Sometimes it is good just to let them know they are being heard, even if you ultimately don’t follow their wishes. In your conversation with them, let them know that they are important, but that the parents are going to have the final say in what’s best for them.

2.  Will the arrangement allow for the child to develop strong bonds with both parents? Children who have strong bonds with both parents seem to do better in life; at least in terms of their ability to form strong relationships with other people and, in particular, in their own marriages and romantic endeavors as they grow up. In order to form these parent-child bonds, it is important that children be given adequate time to bond with both parents. Sometimes, this means planning quality time rather than focusing on the quantity. For instance, a 60+ hour a week professional parent may not actually have the time to be a weekday custodial caretaker.  That parent may only see his or her children off to school, but won’t be home until long after they are in bed. Perhaps in this case, it is better to focus on the quality time, ie. Being a “weekend parent” when there is free time to be attentive.  (Note: There is a lot of discussion in mediation about whether a hard working parent’s mom (“grandma”) is a good substitute when that parent is unable to get home from work.  Though this may be good for everyone, it doesn’t meet the goal of “bonding” with a parent and these types of situations must be considered on a case-by-case basis.)

3. Is the arrangement conducive for the child’s learning and growth? If your child is always stressed out because he or she feels bounced around between locations, their ability to absorb both your and the school’s teachings may be adversely affected. It is true that children need structure, the key reason behind writing a Parenting Arrangement in the first place. But stress can be cumulative and take some time to show in your child; that is why it is necessary to be on the lookout for it from the get-go.  Parents who choose to have their children live in two separate homes must be on the alert to whether the stress caused by living in two different homes is balanced by the benefits of having two involved parents in the child’s life.   Sometimes it is; sometimes it is not.

4. What kind of children do you have? This is the type of question that the courts do not have the resources or time to answer. You and your ex-spouse need to ask yourselves these kinds of questions: Do each of your children need to be on precisely the same schedule?  Would a somewhat divergent schedule based on the children’s age, etc. allow for needed one-on-one time with each parent? Is your child organized? A little scattered?  Can he or she handle the back and forth and keep track of his or her homework? Do your kids have a great need for down-time?  Do they roll with things easily?  Does it take them a while to get settled in to do their homework?  Are they anxious?  Carefree?  With whom do they talk about their problems (if either of you)? Do they need a lot of discipline?  Who is the disciplinarian? Is your child more bonded to one his or her parents than the other? Would spending days away from one or the other of you be devastating to them?

It can seem like a lot of work to figure out a good parenting arrangement agreement, because it is. Be aware that it should be a flexible agreement as you monitor your children and their responses. While kids can seem resilient, what happens to them as children will shape them as adults. If they don’t get the chance to bond with one of their parents, it may manifest itself in romantic relationship problems later in life. Moreover, their stress may keep them from growing in school, which is a possible foreshadowing of how well they may do in the job market.

None of this is said to frighten you, but rather to give you some tools to effectively craft a Settlement Agreement with your soon-to-be ex-spouse that is in the best interest of your children. Every family is different in the details, but if you offer your children love, a sense of safety, and emotional support, the odds are in your favor that your children will do just fine.

Written by Jane Baber, Mediation Assistant, and Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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Nesting

September 17, 2013

In recent years, parents seeking a divorce have been trying out a new and unconventional living arrangement to maintain what some of them feel is a higher level of stability for their children. This arrangement is known as “nesting”. In most cases, nesting involves the parents rotating in and out of the family residence, while the children remain in the family home full-time.nesting

            Parents may decide to nest for a few different reasons. Some feel that it is in the best interest of their children to keep them in a familiar environment in both home and school. Also, some parents have chosen nesting because the current market makes it economically unattractive to sell the family home. Nesting allows them to “buy time” without either parent moving out full-time.

            Nesting has the potential for creating less disruption in the children’s routines than traditional custody plans that have the children going and back and forth between their parents’ homes.  However, this means that both parents have to travel back and forth between their two homes, which has its own set of stresses.

            Nesting can also be expensive.  If there are no acceptable, free or inexpensive living arrangements for the parents during their “off time” (time not in the family home with the children), the nesting family may end up paying a mortgage and two rents. To avoid these costs, some nesting arrangements involve one parent living permanently in the family home while the other spends occasional nights in a guest bedroom or on the couch.

            That type of nesting, however, has its drawbacks.  First, it can be confusing to children.  Second, there are legal and tax issues with this second type of nesting, such as your state’s definition of “living separate and apart” for purposes of meeting the criteria to get divorced, and the fact that the IRS will not allow alimony payments to deductible for divorced former spouses if they are living under the same roof.

            When considering nesting, parents will need to decide what is in the best interest of the family in both the immediate future as well as long term. While it is good to maintain a familiar environment for children, nesting is often too expensive, too stressful or not a good idea from a legal or tax standpoint.

            Graine Mediation would love to hear from successful nesting parents—leave a comment!

Posted by Zia Meyer, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Resource

Sklarew, Renee. “Bridging the Gap Divorced Parents Share Space”.

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“Happily Ever, After We Split” –An Uplifting Article About Divorce? A Definite Must-Read.

August 5, 2012

Boy with parents.

       Divorce can be scary. Especially, when contemplating whether or not to take that leap. The best analogy I heard, when faced with that very decision, is this: it’s like a cat that falls from a window, from way up high. At first, it arches its back and scrunches its face, adjusting to the pain and taking an inventory of the damage. But then, like a cat that always lands on its feet, after the initial impact, most people look around and realize: I am going to be just fine; there’s a big new world all around me, just waiting to be what I make of it.

       I like that. A lot. To be honest, hearing that very analogy was one of the final pieces I needed before taking that leap on my own. And now, nearly two years later, there’s no doubt that, for my ex-husband and me, divorce was the right decision. In fact, my ex, and son’s father, is the very person who clipped and mailed to me the article I want to share with you.

       Only now, post-divorce, are my ex and I able to enjoy together (with our son, of course), long lunches filled with laughter, and exciting road trips to the National Aquarium – just like back when we were dating. Well, kind of. The big difference, is that now we know how our story as a couple ends. Still, we both couldn’t be happier with our current “relationship” (as exes and co-parents).

       Don’t get me wrong. A) I would certainly never advocate for divorce…at least not indiscriminately. Anyone who’s been through one, knows the process can feel a whole lot like Hell on Earth.  And, B) without a doubt, I’m a true romantic, a true believer. I wish to holy heaven that my union of matrimony had turned out to be the real deal: a joyful, enriching companionship, enduring forever and ever. Unfortunately, my marriage most certainly did not. And yet, I sense that my ex and I will nonetheless share an enduring, enriching, and even joyful companionship. It’s just that, it looks absolutely nothing like how I would have planned or expected it.

      Everyone knows our national statistic. The divorce rate hovers somewhere around 50%. The point is, as a society, maybe we need to reevaluate our expectations of marriage. And, until we stop getting divorced with such frequency, maybe we should consider learning how to divorce with a whole lot more civility.

       Wendy Paris, the author of The New York Times article, “Happily Ever, After We Split” tells a wonderful anecdote with commentary, exactly to that effect. Enjoy!

Posted by Maggie Fox Dierker, Esq.

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Why You Should Not Expect Your Bank to Voluntarily Rewrite Your Loan

January 4, 2012

Many divorce clients are looking for ways to restructure their finances so that they can move on with their lives with a clean financial slate.  In this economy, that is tough going.  From what I have seen, loan modification applications get “lost” more than is statistically appropriate and there is little chance of  being forgiven or renegotiating  just about anything when it comes to banks.  In other words, “Bank Wins” is the norm.  I could not have expressed what is going on in the world of bank loan remodifications better than the following article.  See the link below for a great article to read in case you are thinking about a divorce which is based, in part, on some type of refinance/loan modification on your upside-down residence:

http://www.bankruptcylawnetwork.com/why-you-should-not-expect-your-bank-to-voluntarily-rewrite-your-loan/ via

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The Emotional Stages of Divorce

November 22, 2011

Everyone reacts differently to divorce. Most people, however, go through similar stages, much like grief. Just like after the death of a loved one, it is common to move back and forth between the stages. The tough part for the divorce mediator is that client-couples are rarely in the same stage at the same time.
When one party is ready to “get down to business”, while the other party is an emotional mess, it is the mediators job to slow the “ready” party down and allow the other party to catch up a little bit. It is important for both the husband and the wife to be able to keep up with the facts, information, proposals, etc., and to make sure that they are not too emotionally unstable to negotiate effectively.

Cathy Meyer, About.com Divorce News Editor, lists 6 emotional stages of divorce:

• Denial
• Shock
• Rollercoaster
• Bargaining
• Letting go
• Acceptance

For more detail about each stage please visit her article http://divorcesupport.about.com/od/copingandemotialissue/f/stagesofgreif.htm

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Family biz makes divorce complex…

October 16, 2011

Family biz makes divorce complex and very expensive. Huff Post lays it out at http://ow.ly/6YAaG

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CHILDREN of DIVORCE: Do They Have Shaky Relationship Skills as Adults?

September 22, 2011

We all know that divorce can be a very traumatic time for the children who get caught in the middle. For years, though, there has been loud rumbling that “if mom and dad keep it friendly, everyone will be OK.”  Is that true?  Not really, say the experts.  Though the damage may not appear in acting out behavior, plummeting grades or depression, you need only to look at your own children to see that children learn most about life – at least as far as their parents are concerned – by way of watching what the the parents do, not what they say.  That should make it easy to see, then, that kids who live through a divorce are probably more likely, as adults, to experience their own divorce.  Monkey-See, Monkey-Do.

According to Nicholas H. Wolfinger, in his book Understanding the Divorce Cycle: The Children of Divorce in their Own Marriages, there is clear statistical evidence that “divorce is transmissible from parents to children and that it continues, in many families, to cycle through generations.”  “The crux of the idea”, says Wolfinger, “is that the family structure of origin powerfully affects marriage formation and marital stability in the adult offspring of divorce.”  Wolfinger and colleagues found that:

Among adults whose parents had two or more failed marriages:

67% divorced, 26% two or more times.

Among adults whose parents divorced and remarried only once:

58% divorced, 19% at least twice.

Among adults raised in intact homes:

41% divorced, 9% two or more times.

What to do if you are contemplating or are in the middle of divorce?  Try your best to use the divorce as a learning tool to help our kids develop mature, seasoned conflict resolution skills.  Sound trite?  Maybe.  But, at least it will keep you focused on your kids and not your soon-to-be-ex-spouse’s idiot behavior and post-divorce financial blues.  It will help you, too, blossom into the level-headed and child-centric negotiator that you need to be at this complex and emotional time.

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Divorce & Taxes Series: Part 3

September 16, 2011

Tax Snippet #6 – Alimony (Spousal Support) has a Big Tax Affect; Child Support is a Wash.  It’s boon and bust with alimony.  Alimony is a boon to the payor, because it is deducted right off the front page of his/her 1040, thereby decreasing his/her Adjusted Gross Income (taxable income) by the amount of the alimony paid.3 Of course, that means that the receiver of alimony gets taxed on the money received, just as if it were ordinary income (like a salary).

In contrast, child support has no tax affect.  It is not considered income to the recipient or a write-off for the payor.  Instead, the IRS views the payment of child support simply as money spent for the support of one’s children – money that would have been spent on the kids whether or not there had been a divorce.  Therefore, the payor does not get to take a deduction for child support (like he/she would have for alimony) since it is usual and ordinary for parents to support their children with post-tax dollars from their employment with little opportunity for write-offs, etc.  Similarly, the recipient of child support does not have to categorize child support as income, for tax purposes, because child support is supposed to be used, as directly as possible, for the support of the kids and, of course, that money was already taxed at the payor’s end.

How does this matter to parents in the middle of a divorce situation?  My experience is that it matters a great deal – or, perhaps, should matter a great deal — to many people.  It can mean big dollars for some divorcing couples and is an excellent tool in the divorce settlement negotiator’s toolbox.  Determining how to divvy-up support between the child and spousal support sides of the ledger can add civility to financial settlement negotiations.  Why is that?  Because a positive tax benefit to one parent does not necessarily create a negative tax burden to the other.  It’s just does not always work that way.  Do the math with your accountant, bring it to the table, and you may be able to allow both parents to walk away with something good in the deal.

The Tax benefits to the payor of spousal support may turn a spouse, who is otherwise emotionally resistant to the concept of alimony, into a willing participant.  Many people do not like paying alimony.  It rubs them the wrong way.  A little massage by Uncle Sam, though, can turn that frown into a smile.

With all this negotiating over tax bennies and smacks, is the IRS standing by idly and waiting for your numbers to come in.  Of course, not.  Where there is play in the tax code, there is the taxman overseeing the game.  Be aware that questions bearing on whether dollars sent from one household to the other, post-divorce, are actually “alimony” or “child support”, are usually answered with the IRS’s default: “Child Support”.

As long as a legal amount of child support is clearly being awarded in a divorce case (in Virginia and most other states there are statutory guidelines that must be met), the characterization of support as “alimony” or “child support” is often negotiated in divorce settlement talks.  Be aware, however, as the IRS may not always agree with your and your ex-spouses characterization of support as “alimony” or “child support” regardless of how fair the two of you think the deal is.  And, they are the boss when it comes to taxes.  See Tax Snippet #7, below and, of course, your CPA, if there any questions on this slippery area of divorce tax.

_________________

3A deduction is an exact dollar amount by which your gross income (income that is taxable) is reduced.  In other words, deductions lower the final amount of income that Uncle Sam can tax.  After subtracting deductions from gross salary (page 1 of your Federal Tax Return – Form 1040), the dollar amount remaining is referred to as your Adjusted Gross Income. (Other deductions include IRA deductions, certain educator expenses, health savings account contributions, student loan interest, moving expenses, and a few others.) Deductions are not the same as credits.  Credits are taken off the top of what you would have owed to the IRS if you did not have the credits.  Credits do not lower your taxable incomes.  Instead, they lower the actual tax bill owed to Uncle Sam. (Page 2 of your 1040) The IRS allows, as credits, certain child and dependent care expenses, the child tax credit, residential energy credits, and a few others.)  To further confuse you, the Fed’s also have one more deduction that has a different name: Exemptions.  Exemptions (page 1 & 2 of your 1040) include the tax breaks you receive for: (a)  just being a human being and; (b) for the other human beings who are your dependents (children, dependent relatives).

*  *  *  *  *  *

Tax Snippet #7 – Don’t Mess with the IRS when it comes to Labeling Support as “Child Support” or “Alimony”.  Many parents feel that the minimum guidelines for child support in their state could not possibly meet their child’s needs, but the tax affect of child support (being a wash) does not sit well with the payor.  In these cases, divorcing couples often negotiate a division in the characterization of support into both camps: The Minimum Statutory Guidelines Amount = Child Support; The rest of the Support Money = Spousal Support.  This can often work well, financially, for divorced parents.  Beware, however, that the IRS does not always go along with parents’ tax planning decisions.

In particular, divorcing parents need to be careful where a big change in the amount of alimony is automatically triggered around the time (within 6 months) of a major event in a child’s life (such as graduation from high school).  In those cases, the IRS may very well re-characterize those alimony payments as child support and come looking for the payor to pony up.  Remember: Don’t mess with the IRS.  See your CPA and your divorce attorney.

These Tax Snippets are written based on my observations and experience.  I am and not a CPA, tax planner or tax attorney.  I am a mediator and former family law attorney. These are, however,  some of the key issues that I see over and over again with my clients.  This series of articles is intended to help you “get your feet wet” in this mucky area of divorce.  If you think any of these issues might affect you, see your tax professional for up-to-the-minute and personally-tailored tax advice.

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Divorce & Taxes Series: Part 2

September 11, 2011

Tax Snippet #3 – The Exemption for a Dependent – Who Gets to Keep It? The IRS will, in most circumstances, dub the person with whom the child lives the majority of the time as “The Custodial Parent”.  This is true unless your settlement agreement and/or divorce decree clearly states otherwise, e.g. one parent is officially named the “primary custodian”.2 Why is it important, for tax purposes, which parent the IRS views as the “custodial parent”?  Because, the custodial parent, by default, gets to keep the child exemption for a dependent child – a good savings for most people.

What happens if your settlement agreement/divorce decree states that custody be “shared equally” by the parents?  Confusion and trouble, if you don’t make some decisions.  To help in these situations, the IRS has implemented default criteria to determine who, in fact, is the “custodial parent”.  The IRS looks at whether:

  • Your child is under age 19 at the end of the year (or under age 24 at the end of the year if a full-time student);
  • Your child has lived with you for more than half the year;
    and
  • Your child has provided less than half of his/her support for the year.

The trouble comes when two taxpayers meet all of the criteria above and their settlement agreement/divorce decree is silent as to which parent gets the dependency deduction.  What to do?  The IRS has made a tiebreaker for these circumstances:

  • The custodial parent is the one with whom the child spent the most number of nights in the tax year in question.

But, what if the parents truly shared time with their child (ren) on a 50-50% basis?

  • The IRS will grant custodial parent status on the parent who has the highest adjusted gross income.

Is the dependent child deduction “bargainable”?  Yes.  Some people trade off the exemption (every other year), some split up the children (e.g., dad takes the boy, mom takes the girl), some negotiate the deduction in exchange for something else of value, and some couples (smart ones) go to an accountant to see what the true benefit would be to each of them before making proposals and engaging in negotiations regarding the dependent child exemption.

As of this writing, the IRS requires the custodial parent to complete and sign IRS Form 8332 and have it attached to their and the other parent’s tax return if the primary custodian is giving away her/his right to the deduction.  (This has not always been the case and you should check on the rules each and every year that you file your taxes to see what the IRS has cooked up on this one.

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2Of course, if your child’s living situation directly contradicts your divorce paperwork, this can create lots of problems and you may want to consider renegotiating your written parenting arrangements sooner rather than later.

*  *  *  *  *  *  *

Tax Snippet #4 – Head of Household.  Somewhere in between “married”, “married filing separately” and “single” is the divorced taxpayers’ best friend: “head of household” status.  What is that?  Filing as “head of household” usually nets you:

  • A lower tax rate than if you claim a filing status of single or married filing separately;
  • Allows more liberal income limits before the IRS puts a damper on your child tax credit (same for retirement account contributions);
  • You may be able, if you are still married, to claim certain credits (such as the dependent care credit and the earned income credit) that you cannot claim if your filing status is married filing separately;
    and
  • It increases the income limits that reduce your child tax credits.

You must meet the following criteria to be eligible to file as “head of household”:

  • You file a separate return (if you are still married);
  • Your spouse did not live in your home during the last 6 months of the year (whether or not you are yet divorced);
  • You paid over half the cost of keeping up your main residence;
  • You qualify to claim your children as dependents (whether or not you have kept or given away the dependency deduction to the other parent); and
  • Your home was the main home of your child for more than half the year.

These Tax Snippets are written based on my observations and experience.  I am and not a CPA, tax planner or tax attorney.  I am a mediator and former family law attorney. These are, however,  some of the key issues that I see over and over again with my clients.  This series of articles is intended to help you “get your feet wet” in this mucky area of divorce.  If you think any of these issues might affect you, see your tax professional for up-to-the-minute and personally-tailored tax advice. 

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