The Answer Is, It Is

Video Transcribed: Hello, this is Oklahoma fathers rights attorney, Brian Jackson. Today I want to talk about whether or not your tax refund is a divisible property in your divorce. And this is a question I get a lot of. Parties are getting divorced, here comes tax season, the taxes are from the prior year and you’re getting a tax refund. Is it a divisible property? Well, the answer is, it is. And I’ll explain to you how, and then talk to you about what you can do about that.

It is divisible property because your tax refund is basically going to be derived from your earnings from the prior year. And if you were living in amity the prior year, and when I say living in amity, in other words, you and soon-to-be ex-wife were living together as a married couple and operating as a married couple, your earnings and her earnings are considered marital property.

Now, because the earnings are marital property, that also means that anything derived from the earnings would also be marital property, including, but not limited to, tax refunds and tax credits. So the fact of the matter is that is divisible.

Unfortunately, what you see a lot of is that there’s a race to the mailbox, to file taxes so that one party or the other can try to claim the child tax credit and keep all the money. But as a practical matter, it is divisible.

And whether you get to the mailbox first, or she gets to the mailbox first, that refund better goes in the bank and better be sat upon until such time as the court makes a determination on who gets how much. Or, if you can agree on who gets how much, then you go that route, but you do not, do not, do not get to just go off and spend that money. That would be a violation of the automatic temporary injunction, and it can get you cited for contempt.

So that’s the long and short of it. Yes, that money is divisible. Now, once you all are divorced, one of the things, if you have children, you want to make sure your divorce decree addresses is the issue of the child tax credit and the child tax deduction once you all are separated.

And guys, I would encourage you, if you pay child support, even if you’re not custodial, if you pay child support, you should get the benefit of that tax credit at least some of the time. I encourage my clients to look for at least every other year, if they’re non-custodial, because you’re still paying to support that child, and you should get the benefit of the deduction as well.

But that’s something that you need to stand up for and ask for. It needs to go in the order because the IRS will presume the custodial parent gets the deduction unless there’s an order to the contrary.

So that’s something you need to get in your order, because guys if you’re doing the right thing, you’re being a good dad taking care of your kids, you should get the benefit of that tax credit so you can use it for your child’s benefit, not just her. So that’s something that, as an aside, that you should consider.

If you have questions about any of this, or you’re dealing with a situation that you need help with such as you are looking for a Men’s Child Custody Lawyer in Tulsa Ok, you should go to dads.law