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Claiming Dependents when Divorced

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paulstrgn

Question

I have a neighbor who is divorced and has three boys, two of them are living with his ex-wife and the other is by his second marriage and lives with them. Do the other two boys need to live with him in order to add them as dependents with the VA? He pays child support and both boys are single and still go to school. The oldest will be going to college soon.

In my mind he should be able too but when it comes to the VA one never knows.

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I found this question (Q) and answer (A) on a legal website.  It looks like he can claim them as he is providing child support.  

"

Q. Can VA benefits be considered as a source of income in awarding child support or alimony?
A. Yes, although some states may have cases or statutes which exempt VA disability benefits. In Rose v. Rose (1987), the U.S. Supreme Court reviewed a contempt judgment against a veteran whose sole source of income was his VA disability compensation. He had refused to pay $800 a month in child support, claiming that he was constitutionally allowed to keep these VA benefits for himself. In an extensive review of the statutes and rules governing VA payments, the Court found that “these benefits are not provided to support appellant [the veteran] alone.” It went on to state that:

Veterans' disability benefits compensate for impaired earning capacity, H. R. Rep. No. 96-1155, p.4 (1980), and are intended to "provide reasonable and adequate compensation for disabled veterans and their families." S. Rep. No. 98-604, p.24 (1984) (emphasis added). Additional compensation for dependents of disabled veterans is available under 38 U. S. C. ' 315, and in this case totaled $90 per month for appellant's two children. But the paucity of the benefits available under ' 315 [now 38 U.S.C. 1115] belies any contention that Congress intended these amounts alone to provide for the support of the children of disabled veterans. Moreover, as evidenced by ' 3107(a)(2) [now found at 38 U.S.C. 5307], the provision for apportionment we have already discussed, Congress clearly intended veterans' disability benefits to be used, in part, for the support of veterans' dependents.

The Court noted that “children may rightfully expect to derive support from a portion of their veteran parent's disability benefits.” There can be no doubt that family support is one of the purposes for the VA payments given to a veteran."  

One caveat would be; was he divorced prior to getting his disability award and/or were his children listed as dependents at the time of getting his disability award.

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Child: 38 CFR 3.57 defines a “child” of the veteran as an unmarried person under the age of 18 who is a legitimate child, a child legally adopted before the age of 18 years, an unmarried stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an unmarried illegitimate child. It goes on to say that a child can also be one who is between the ages of 18-22, unmarried and attending school (referred to as a “school-child”). Additionally, 38 CFR 3.58 includes as a “child” one who is over the age of 18 and who, prior to reaching the age of 18, is found to be permanently incapable of self-support because of physical or mental disability and is unmarried (Referred to as a “helpless child”).

Child: Once established as the child of the veteran, additional compensation benefits are payable whether or not the child resides with the veteran. Child custody is irrelevant, but as in the case of the spouse, the veteran must know of the whereabouts of the child in order to report changes of status to VA.

There you go,

Hamslice

 

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The really unhelpful truth is it depends.

1) the state the divorce and custody orders were filed in

2) the specific divorce decree and custody order

If for example the judge orders support but that he cannot claim them on his taxes, and yes that happens in some states, then probably not.

If the judge is silent on that, then maybe so depending on the other factors.

your friends best suggestion is to speak with a veterans lawyer who has dealt with divorces in his state.

If he is the DIY type who can dig into the laws himself, the county has a public Law Library and a Librarian that can assist in finding the relevant state law.

 

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Read the divorce decree.  It should state which parent qualifies as the supporting parent and gets to claim the child as a depenedent for IRS purposes.  

If the divorce decree is silent on the matter, who claims the child as a dependent for taxes????  

IRS says you qualify if you provide "over half" the support for that child.  Both parents can not be the primary support.  

If IRS allows you to claim the child as a dependent, then you should likewise be able to claim the child as a dependent with VA, without going to court to get a judge decide.  

Many times "one parent" will admit and allow the other parent to claim that child as a dependent.  Ask your ex if you can claim the child as a dependent, if she so agrees, you should be good to go.  

Its another good reason to have a good rapport and relationship with your ex spouse.   

She may need to write a letter declaring that you are the primary support to the child(ren).  

Edited by broncovet
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