Rhode Island Divorce Tips

By:  Christopher A. Pearsall, Rhode Island Divorce and Family Lawyer

QUESTION: 

How Can I Claim My Child If I Pay Child Support?

ANSWER:

If you're looking for an easy answer that allows you to claim your child for State and Federal Tax purposes, you won't find it because it's usually not that easy if you are the payer of child support.

As a lawyer I focus my practice exclusively in Rhode Island Divorce and Family Law. Many people think they that if they pay child support that they are entitled to claim one or more children in whole, or in part, on their taxes.

Under Rhode Island Family law and probably in many other states the situation is just as John describes it. In the Rhode Island Family Court the spouses of a child can agree who will claim the child as a deduction on state and/or federal taxes. However, the agreement must be formal and must be approved by the family court in order to be proper and binding.

In the alternative, if there has not been an agreement approved by the family court between the parents about which parent will claim which child(ren) on their federal or state taxes as a dependent and/or claim the exemptions for the child(ren) , then one of then a parent may petition the court to award him or her one or more dependency and/or exemption claims for a child or children.

However, in Rhode Island if there is a divorce proceeding that has come before the court there is a presumption that the parent who has primary physical custody (also referred to as “placement parent”) of each minor child is the one who will receive the dependency and exemption deductions for the child or children in their placement. This is set forth in the Administrative Orders of the Rhode Island Family Court.

It should be noted that even if one parent agrees that the noncustodial parent may have the dependency and/or exemption allowances of one or more of the children living with the placement parent, OR if the state court orders that a noncustodial parent may have the dependency and/or exemption allowances for one or more of the children living with the placement parent, this is not all that is required.

Whether a parent may take a dependency deduction and/or the exemption allowances it is federal tax law that determines who may claim a dependency exemption for a child.

Even if a state court order allocates a dependency exemption for a child to a noncustodial parent, the noncustodial parent must comply with the Federal tax law standards and tests in order to qualify to claim an exemption for the child(ren).

To claim an exemption for a child(ren), the noncustodial parent must attach to the noncustodial parent’s return a copy of a release of claim to exemption by the custodial parent.

The release may be on a Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a document that conforms to the substance of that form. (See Internal Revenue Service Info Page)

In other words, while it may be nice to bargain with dependency allowances and exemption claims in a divorce or family law proceeding, it is not always as easy to bargain for the deductions for children in the proceeding.

Even if a custodial spouse agrees to give a noncustodial parent the dependency allowances and exemptions for a minor child as part of a settlement and agrees to sign IRS Form 8332, the agreement may be a waste.

Why? Essentially it is because if the noncustodial parent does not meet the Federal IRS Tax Regulations to take dependency allowances and exemptions on his or her taxes, then the deduction may well be lost to both parents or the noncustodial parent may raise a red flag for an audit for taking unallowable dependency deductions and exemptions.

Related articles

RI General Laws § 15-5-12 Domicile and Residence Requirements

Enough of the Bias Already! When Family Court Judges Cross the Line!

Collaborative Lawyers in Rhode Island - The Mistake of Avoiding the New and Different.

FAQ: Why Can't the Rhode Island Family Court Clerk's help me fill out forms?

By:  Christopher A. Pearsall, Rhode Island Divorce Lawyer

When you file for divorce in Rhode Island, the Notice of Automatic Orders becomes effective the moment the plaintiff (i.e. the filing party) signs the complaint for divorce.  In most circumstances, this Order's provisions becomes effective for the defendant (i.e. the party being served with divorce papers) once he or she is served with the divorce documents.

So what is the Notice of Automatic Orders?  It is a document printed signed by the Chief Judge of the family court that is included in your Rhode Island divorce documents. More significantly, it is a Rhode Island law.

If you would like to see what it looks like as of the writing of this article you can download it here -> RI_Notice_of_Automatic_Orders

As of the writing of this posting, it is Rhode Island General Laws §15-5-14.1.   The plaintiff is must be aware of and abide by the provisions of the Notice of Automatic Orders at the time he or she signs the Complaint for Divorce.  The defendant is expected to be aware of (and must abide by) the provisions of the Notice of Automatic Orders at the time he or she is served with the document along with the complaint for divorce and the other service documents.

It is extremely important to note that this Notice of Automatic Orders used to be a document that was prepared and included in the filing party's divorce packet.  When it was done in this way it was easy for a plaintiff to be aware of the document.  The plaintiff either had to put it in the packet himself or herself or if the plaintiff hired a lawyer then the lawyer would go over the document with the person at the time the divorce complaint was signed. 

Today documents are e-filed by lawyers and the court creates both the Summons and Notice of Automatic Orders.  If you or your lawyer don't keep this in mind, this new timing issue could cause a problem.

An example illustrates this best.

Daniel is representing himself (i.e. "PRO SE") in his own divorce.  He prepares all of the documents himself including the Complaint for Divorce which he signs before a notary public at a local bank.  He files his divorce complaint and the other supporting documents that constitute his divorce packet with the court.  Two days later Daniel goes to the bank and empties out his joint bank account that he holds with his spouse.  At this point Daniel doesn't have the service packet documents which include the Notice of Automatic Orders that the court now prepares for you.

Daniel calls the court a day later and finds that the service packet of documents to be served on his spouse is ready. Daniel picks it up and has it served on his spouse by a local constable.

Daniel's spouse hires a lawyer and immediately re receives a Motion to Adjudge him in Willful Contempt of the Notice of Automatic Orders because Daniel violated the very first provision which prohibits moving or removing assets and went into effect the moment he signed his divorce complaint before a notary.

Daniel thinks it's easy.  He goes to court and tells the judge that he didn't know about the provision in the Notice of Automatic Orders so how could he abide by them.  He argues that they weren't even prepared by the court until after he had already removed the monies.

The judge is not impressed.  The judge orders Daniel to give his spouse 60% of the money he took out and to pay his spouse's lawyer fees and costs of $750 for having to file the motion and appear at court to argue it and pay his spouse for whatever time may have been lost from work.

Daniel is furious.  He continues to argue that he doesn't think it's fair that he is held to the requirements of a document that he couldn't have known about because it wasn't created yet by the court at the time when he acted.

The judge's response was simple,

"Perhaps you should have hired a lawyer who knows our divorce laws.  The Rhode Island Automatic Orders are in our state's domestic relations laws, our RI Rules of Domestic Relations Procedure, our E-filing Guidelines and the Family Court's Administrative Orders.  Ignorance of our laws is never a defense nor an excuse.  So do not blame the court.  If you are looking for someone to blame here sir, then I suggest you look in a mirror."

Being a good divorce and family law in lawyer in Rhode Island has become more challenging in today's age of technology and everchanging rules.  The RI Rules of Domestic Relations Procedure have been rewritten and revised several times over.  Formal procedures sometimes differ from what the rules indicate and even as an experienced Rhode Island family lawyer it often becomes a challenge.

When you hire a lawyer, make sure that you are shown the Notice of Automatic Orders and that you read them thoroughly before you sign your complaint for divorce under oath.  Don't let any lawyer let you skip it.  A good lawyer will take the time to go over the law that you are held to.  If a lawyer wants you to skip the Notice of Automatic Orders or just tells you to trust him or her and sign on the dotted line, rethink the lawyer you chose. Every good lawyer should take the time to keep you informed for your protection as a client.

Rhode Island Lawyers and Pro Se Individual's Take Notice
 

Effective June 4, 2012 all Decisions/Orders/Decisions Pending Entry of Final Judgment and Final Judgments filed in the Rhode Island Family Court System must be typed or typewritten as those created by a computer or word processor system before being signed by the Chief Judge / Judge or Magistrate.