Something that people dispute quite regularly and waste attorney fees is the tax exemption for the minor children. As a Nashville divorce attorney, I frequently have instances where all matters are resolved except for who claims the children on taxes. Most of the time this just wastes marital money on attorney fees and increases stress unnecessarily because the divorce can’t be finalized. Any divorce lawyer worth their salt that is regularly in the courts here in Nashville (or Franklin, Gallatin, Lebanon, etc.) knows what the Judge and/or Child Support Services is going to order on this issue.
In Tennessee, the Child Support Guidelines assume that the primary residential parent claims the children as tax exemptions. The value of these tax exemptions is taken into account in the child support calculation. This means that to deny the primary residential parent the tax exemptions has the side effect of enriching the other parent and depriving the children of the proper amount of support for their care. The Tennessee Child Support Guidelines expressly provide that the child support schedule is based upon the assumption that the primary residential parent claims the tax exemptions for the child. See Tenn. Comp. R. & Regs. 1240-02-04-.03.
The only time this issue may even be worth remotely litigating is if the parties have joint (or substantially joint) parenting time, with one parent receiving 183 and the other 182 days on the work sheet even though they have the exact same time on the schedule (also, with 182.5 the calculate will frequently list a parent as primary even though it is joint) OR when one spouse makes significantly more than the primary residential parent and the primary residential parent makes so little that the value of the exemption will be lost. In this instance, even though one parent is technically the primary, it is arguable that the other parent will be deprived the appropriate amount of support for the children or forced to overpay support for the children by not being permitted to rotate the tax exemption every year.
Generally speaking, if you have all of your issues resolved in the divorce except for this one, don’t waste money on attorney fees litigating it unless you have substantially equal parenting time with the PRP. The only person who will win in that situation are your divorce lawyers.
Analiza Burnett v. Mark Burnett, 2008 WL 727579 at *10.
“The Internal Revenue Code automatically assigns tax exemptions for
dependent children to the primary residential parent. I.R.C. § 152(e) (West
2005). Accordingly, the Child Support Guidelines for Tennessee assume,
but do not require, that the primary residential parent will claim the
exemption for the parties’ children. Tenn. Comp. R. & Regs. 1240-2-4-
.03(6)(b)(2)(ii) (2006); see also Eaves v. Eaves, No. E2006-02185-COAR3-CV,
2007 WL 4224715, *8 (Tenn. Ct. App. Nov. 30, 2007). Such a
parent can execute a release of the exemption, which allows the alternate
residential parent to claim the exemption. I.R.C. § 152(e)(2). Furthermore,
the trial court is permitted to order the primary residential parent to execute
such a release. Barabas v. Rogers, 868 S.W.2d 283, 289 (Tenn. Ct. App.
1993) (citing Hooper v. Hooper, C.A. No. 1130, 1988 WL 10082 (Tenn.
Ct. App. Feb. 9, 1988)).”
Judy Travis v. Kenneth Travis, (Tennessee. Ct. App. Mar. 16, 2001)
“Our review of the record reveals a clear disparity between the income of Mr. and Ms. Travis. At the time of the divorce Ms. Travis was working part time and her gross earnings for the eight months directly preceding the divorce totalled less than $4,000.00. By contrast, Mr. Travis was receiving a gross income of approximately $2,800.00 per month at the time of the divorce.
Consequently, the dependency exemptions will be of great benefit to Mr. Travis and of relatively little benefit to Ms. Travis. In addition, the record shows that, prior to the divorce, Mr. Travis was paying $660.00 per month in child support and that, pursuant to the judgment of the Trial Court, he will now be obligated to make child support payments in the amount of $700.00 per month. The record also shows that Mr. Travis has voluntarily assumed other expenses with regard to his children in addition to the child support payments and Ms. Travis testified that if the children ask for something that she can’t provide she directs them to their father. In consideration of the fact that Mr. Travis will be responsible for a substantial portion of his children’s expenses, it seems to us that he should be allowed the dependency exemptions as a matter of equity.
Based upon the foregoing, we find that the Trial Court did not abuse its discretion when it awarded the dependency exemptions to Mr. Travis, there being sufficient evidence in the record to support its decision.”
Most recent related ruling: Culpepper v. Culpepper, (Tennessee. Ct. App. Nov. 4, 2015)
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This article is based on Tennessee law and is applicable in both Davidson County and Williamson County divorce cases, as well as other divorce cases in Middle Tennessee. Morgan Smith is a divorce lawyer with offices in Nashville, Tennessee.