Taxes mess? Need help?

Question

My ex husband and I share(d) custody of my daughter and the original agreement says that each even year he claims her on taxes and each odd I claim her. At this time he was also seeing her 6 months out of the year. Now he has turned into a dead beat dad and hasn't seen her in almost 1.5 years and he expects to claim her this year.

My question is that since she hasnt' set foot in his house in so long nor does he pay any assistance does he have the right to claim her?
I don't want to mess up my taxes by assuming he's a total dead beat.

Thanks!

Answer 1

The divorce decree MUST contain very specific language to be accepted by the IRS. You'd be best advised to grab a copy of IRS Pub 501 and review it. It explains the language that MUST be included in the decree for the IRS to honor it on its face.

If your decree does NOT follow the specific guidelines in IRS Pub 501 and you had custody of your daughter for more than half of the year, feel free to claim the exemption. If the decree DOES comply with the law you'd be best advised to do as it says.

If both of you claim the child, the IRS will contact you both and ask for proof of your claim. They will then award the exemption according to the law and bill the other party for the additional taxes due. If the decree does NOT meet the specific requirements laid out in Federal law, the IRS is legally obligated to award the exemption to the custodial parent regardless of what the intent of the decree is.

Here's a direct quote from IRS Pub 501:

"Divorce decree or separation agreement made after 1984.

If the divorce decree or separation agreement went into effect after 1984, the noncustodial parent can attach certain pages from the decree or agreement instead of Form 8332. To be able to do this, the decree or agreement must state all three of the following.

1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.

2. The custodial parent will not claim the child as a dependent for the year.

3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.


The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.
The cover page (write the other parent's social security number on this page).

- The pages that include all of the information identified in items (1) through (3) above.

- The signature page with the other parent's signature and the date of the agreement."

If your decree does NOT meet the above requirements, YOU may disregard it and take the exemption.

Answer 2

It depends on whether what's written into your agreement meets the IRS rules to be valid - not all agreements do. If it's valid, you could petition the court for a change due to changed circumstances.

Good luck.

Answer 3

Until there is a different agreement from the court, then he has the right to claim her.

Answer 4

If the divorce agreement states that he gets to claim her, then he gets to claim her. Changing that would probably involve going back to court.

If he is in arrears on his support, then any refund he claims will be seized by the government.

Answer 5

I believe that you can only claim the child as a dependent if they live with you for atleast 6 months of the year and you pay for atleast 50% of his/her expenses. So based on your explanation, your ex does not have the right to claim her as a dependent. You will probably need to document this for your tax preparer and have him/her review the agreement as well.

The link below is helpful from About
http://taxes.about.com/od/dependents/a/Dependents.htm