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Tax Time: Who takes the child exemptions in a Missouri divorce?

On behalf of Harper, Evans, Hilbrenner & Netemeyer

Mar 19, 2014

Child custody arrangements are often an important aspect in a divorce. Missouri law essentially recognizes two forms of custody — physical custody and legal custody. Some people may seek to address the two issues at the same time — possibly agreeing to joint custody arrangements. Legal custody involves who will have the decision making authority in important matters, such as health care and where the kids will attend school. Physical custody refers to the living arrangements for the kids.


While a divorced couple may opt for joint physical custody, the time spent with each parent may vary from case to case. In some situations the kids may alternate between each parent’s residence every other week, while in other joint custody arrangements the children may spend more time with one parent or the other for a variety of reasons.


As we head toward the tax filing deadline, it is a good time to note that the federal dependency exemption on tax returns may be addressed in a divorce. Federal law essentially indicates that the parent with whom the child spends more nights with during the entire year may claim the child as a dependent on an income tax return. But, the issue is not set in stone after a divorce.


The IRS will respect an agreement made in a divorce case that tends to alter the default rule. Some people agree to alternate years in claiming the children as dependants for income tax purposes. Other arrangements may also be possible.


For instance, if divorcing spouses have several children, the two parents may agree that one parent is entitled to claim one child as a dependent, while the other claims one or more other children.


Notably, the IRS has a form that addresses agreements to modify the general rule related to the dependency exemption – – IRS form 8332. In divorces that were finalized before 2008, a copy of the court order from the divorce will suffice as an attachment to be filed with a tax return.



A parent seeking a divorce may have questions that touch many issues. A Columbia, Missouri, family law attorney can provide advice and representation throughout the family court proceedings to help a parent seek a result tailored to meet the best interests of the child in unique situations.


Source: The Huffington Post, “Children of Divorce: Who Gets the Tax Exemption?” Stann Givens, March 13, 2014

HOW SHOULD A LAWYER ADVISE THEIR CLIENT

Historically, in these types of situations lawyers have advised clients not to cooperate in police investigations or answer any kind of questions for fear that by answering suspects may implicate themselves further. Now it seems age old advice could put a criminal defendant in the position of having their pre-arrest silence used against them as substantive evidence of guilt. After Salinas pre-arrest, pre-Miranda silence can be used as evidence of guilt unless a criminal defendant expressly invokes their right to remain silent.


With this in mind, how does a lawyer advise a client who calls up and says the police are at his door he him he is not under arrest but they would like to ask him a few questions? The only way to protect your client is to advise them to clearly and concisely explain to law enforcement that they do not wish to waive or forgo any rights and that they additionally do not wish to answer any questions and they are “invoking there privilege against self incrimination” and they are asking to be allowed to contact an attorney before any further questioning.

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