The Moneyist: I share custody with my ex-wife 50-50, but our daughters live with me 24/7 due to her boyfriend’s meth habit. What happens to the child tax credit?

Dear Quentin,

My ex-wife and I divorced in August 2020 after 21 years and four children. In our custody agreement, we have 50-50 custody of the two children who are still minors, including splitting them as tax deductions.

However, things have not turned out that way. I have them 100% of the time due to her live-in boyfriend’s meth-addiction issues. I am grateful for the opportunity to care for them and keep them safe.

I pay child support; however, she does give it back to me for their care. I am very careful in spending it only on them, and not mixing it with my other finances. Will she still be able to use our daughters as a tax deduction?

She contributes nothing to their care and they never stay with her. My concern is also with the coming child tax credit this summer.

Father

You can email The Moneyist with any financial and ethical questions related to coronavirus at qfottrell@marketwatch.com, and follow Quentin Fottrell on Twitter.

Dear Father,

The Internal Revenue Service has clear rules about who qualifies as a custodial parent and why. “The custodial parent is the parent with whom the child lived for the longer period of time during the year,” it states. “Generally, only one person may claim the child as a qualifying child for purposes of the head of household filing status, the child tax credit/credit for other dependents.”

Talk to your ex-wife about these issues, and attempt to come to an amicable agreement to prevent your both claiming your children for tax deductions and the child tax credit. If she reimburses your child support this is unlikely to be a problem, as she no doubt appreciates you taking the kids 24/7. One caveat: People are unpredictable.

“Even in the most amicable dissolutions, I like to inform my client how a judge would likely rule should an agreement not be made, if only for them to better understand what is fair, or more accurately put, what the Ohio legislature and courts believe is fair,” according to Olivia K. Smith, an attorney practicing in Cincinnati, Ohio.

The court will exercise its discretion where parents do not agree. “The Ohio Legislature has given the courts a large amount of deference when it comes to divorce/dissolution agreements,” Smith adds. “However, in regards to claiming dependents, the code uses the word ‘shall,’ a word fairly obscure in Ohio domestic relations statutes (as opposed to ‘may’).”

You currently have a short-term solution to a long-term problem. Given that your kids are not safe at your ex-wife’s house due to her partner’s addiction issues and given her decision to live with that partner, you may wish to consider filing for sole custody to afford yourself the peace of mind you deserve, plus the legal protection and stability your kids deserve.

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