Happy Halloween! Today’s first question addresses the zombie dependency exemption, and the second question, gray re-marriages.
I am going through divorce settlement discussions. I have two children ages 5 and 7. The father and I are going to share the custody of the children 50-50. What should I do about the dependency exemptions? My ex makes more money than me. Even though we are 50-50, he will still pay me child support, because of how much money he makes. What are my considerations in whether to transfer the dependency exemption to him? I heard that it is worth zero anyway, and it would sure make negotiation a little easier with him to transfer it.
While it is true that the dependency exemption is currently worth zero, it is a zombie that will come back to life after 2025. The Tax Cuts and Jobs Act of 2017 reduced the value of the dependency exemption to zero for the years 2018 to 2025 inclusive. However, I note that your children will still be minors in 2026.
Beware, as the transfer of the dependency exemption also transfers the Child Tax Credit. The Child Tax Credit is worth $2,000 per child against taxes actually owed, up to $200,000 of income for single filing status.
Form 8332 transfers not only the dependency exemption, but also the Child Tax Credit. The Child Tax Credit can be refundable up to $1,400 per child, for money you did not even pay in.
You do need an agreement, because if you are sharing 50-50, overnights are approximately equal. The tie-breaking goes to the spouse with the higher adjusted gross income, which it sounds like your ex has.
You would be better to agree in the settlement regarding the dependency exemption so that you both are not filing taxes claiming them. Your options are to agree to alternate every other year, or to make some other agreement to alternate on some pattern other than every other year.
Stay tuned for updates on the zombie dependency exemption. A zombie is a corpse said to be revived by witchcraft or other unnatural means in popular culture. It’s also a tall mixed drink consisting of several kinds of rum, liquor and fruit juice.
My mom is age 60 and thinking about remarriage. I’m a little worried. What are some of the issues my mom will face with remarriage close to retirement age? Should she get a premarital agreement? I’d like some of your thoughts because I know my mother reads your column.
You are asking about the area of “gray” divorce, a growing societal topic. Remarriage is highest in ages 55 and greater. Sixty-seven percent of the remarriages are in the age group of 55 to 64. Fifty percent are at the ages of 65 and older. These are statistics according to the PEW Research Center in 2013. Contrast this with only 43 percent of persons ages 23 to 34 electing to get married. Of course, this lower percentage is probably a little skewed because it does take time to get into a marriage, get out of a marriage and then find a new relationship.
It is thought that the remarriage among persons over age 55 is increasing because of an anticipation of increased life expectancy. There’s always been a gender gap that men were more likely to remarry than women post-age 55, but that gender gap is narrowing. The gender gap narrows particularly among college-educated men and women, who are more likely to remarry.
Your mother should consider the following topics: retirement and retirement beneficiaries, home ownership and the Doctrine of Necessaries in her planning for remarriage.
First, retirement: Your mother is only several years away from Social Security eligibility, assuming she’s been working. If she has not been working, she is entitled to a half of a former husband’s social security or hers, whichever is more. If she remarries, she loses that election. Thus, the economic consequences of Social Security are a consideration. Further, with regard to retirement beneficiaries, absent a premarital agreement a spouse must be named as the 401K or any other ERISA plan beneficiary. With regard to an IRA, anyone at any time can be named as a beneficiary at any time; IRA beneficiaries are not linked to marriage as are 401K and other ERISA retirement plans.
Second, please consider home ownership. Typically, when a married couple purchases a home, the attorney titles the home to both married persons as tenants by the entirety, which includes a right of survivorship. Consider whether or not the home is going to be funded equally with money from both parties and whether both parties are going to pay for the home. Then, of course, whoever is the first to die loses the home to the other surviving spouse. If this is not the intent, then a premarital agreement or an appropriate real estate agreement (post-marital agreement) at the time of purchase of the primary residence is in order.
Third, you should consider the Doctrine of Necessaries. Today, both husband and wife share equally in the liability for the expenses of the other spouse. A medical provider can sue the other spouse for an unpaid medical bill under the North Caroline Doctrine of Necessaries. It is unclear whether the Doctrine of Necessaries can be waived in a premarital agreement, even if notice is given to a healthcare provider as long as the parties are in an intact marital situation. (In the case of separated spouses, there is a case that says the estranged spouse cannot be sued if notice of the separation is given to the healthcare provider.)
Yes, your mother should consider a premarital agreement. A premarital agreement can deal with a myriad of the issues of the retirement beneficiaries, home ownership, how the household budget will be run and most any other item that is the financial component of a marriage other than perhaps the Doctrine of Necessaries. It is unclear in the North Caroline law if the Doctrine of Necessaries can be waived in an intact marriage.
Send your questions on family law and divorce matters to Ask Carolyn at email@example.com, or 216 W. Market St., GSO, 27401. “Like” Ask Carolyn on Facebook and follow on Instagram and Twitter at “Ask_Carolyn.” Post questions for consideration for this column. Please do not put identifying information in your questions. Note that the answers in Ask Carolyn are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your individual case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.