+ Reply to Thread
Results 1 to 15 of 15
  1. #1
    jenmcre is offline Junior Member
    Join Date
    Nov 2010
    Posts
    2

    can a non custodial parent claim children on tax return

    What is the name of your state (only U.S. law)? I live in the state of Florida, My ex husband wants to claim our two children on his tax returns. He currently is in arrears for over 9000 dollars and hasn't seen them since 2007. Until about 6 months ago he refused to have any contact with them from jan of 2009 til about may of 2010 including phone and email.
    Does he have the right to claim them on his 2010 taxes. If so what do i need to do to stop this.
  2. #2
    WittyUserName is offline Senior Member
    Join Date
    Mar 2008
    Posts
    1,210
    Dad would need you to sign an IRS form 8332 releasing the exemption to him to legally be able to claim them. Which is not to say he couldn't try to lie to his tax preparer....but that's a different story.

    If the kids live primarily with you, the court order specifies that the exemption goes to you - then legally you are the one that claims the children.
  3. #3
    mistoffolees is offline Senior Member
    Join Date
    Mar 2008
    Posts
    21,315
    Quote Originally Posted by WittyUserName View Post
    Dad would need you to sign an IRS form 8332 releasing the exemption to him to legally be able to claim them. Which is not to say he couldn't try to lie to his tax preparer....but that's a different story.

    If the kids live primarily with you, the court order specifies that the exemption goes to you - then legally you are the one that claims the children.
    Right, so OP doesn't need to do anything to stop it - just put the correct exemption information on her own return. Eventually, the IRS will discover that two people are claiming the same kids and investigate. If she's got the kids over 50% of the nights, then she is entitled to the exemption and Dad is going to end up paying back taxes and penalties.


    As an aside, if the parents get along reasonably well, it is always worth calculating taxes both ways - Dad gets the exemption and Mom gets the exemption and then agreeing to what ever is the most practical.

    For example, let's say Mom is CP and if we calculate taxes with Mom getting the exemption:
    Mom gets $1,000 refund
    Dad gets $0.00 refund

    Now, if we calculate it the other way (give Dad the exemption):

    Mom gets $0.00 refund
    Dad gets $2,000 refund

    So, even though Mom doesn't legally have to give Dad the exemption, they might work out a deal where Dad gives Mom $1,500 in exchange for her signing the 8332 form. Each parent would be $500 better off in that scenario.

    This scenario is reasonably common when one parent makes considerably more than the other - OR in situations where CP makes enough that the deduction has phased out and isn't worth anything to them.

    But if the two can't sit down and reasonably discuss it and be open about their finances, I'd probably just stick with the IRS rules unless there's a court order that says that CP has to sign an 8332.
  4. #4
    Gracie3787 is offline Senior Member
    Join Date
    Aug 2004
    Location
    Central Florida
    Posts
    5,648
    Quote Originally Posted by jenmcre View Post
    What is the name of your state (only U.S. law)? I live in the state of Florida, My ex husband wants to claim our two children on his tax returns. He currently is in arrears for over 9000 dollars and hasn't seen them since 2007. Until about 6 months ago he refused to have any contact with them from jan of 2009 til about may of 2010 including phone and email.
    Does he have the right to claim them on his 2010 taxes. If so what do i need to do to stop this.
    Does your existing court order address the tax issue?

    If it does, what is the exact wording of the order?
  5. #5
    Artemis_ofthe_Hunt is offline Senior Member
    Join Date
    Jul 2009
    Location
    Smallville MN
    Posts
    1,951
    Quote Originally Posted by mistoffolees View Post
    Right, so OP doesn't need to do anything to stop it - just put the correct exemption information on her own return. Eventually, the IRS will discover that two people are claiming the same kids and investigate. If she's got the kids over 50% of the nights, then she is entitled to the exemption and Dad is going to end up paying back taxes and penalties.


    As an aside, if the parents get along reasonably well, it is always worth calculating taxes both ways - Dad gets the exemption and Mom gets the exemption and then agreeing to what ever is the most practical.

    For example, let's say Mom is CP and if we calculate taxes with Mom getting the exemption:
    Mom gets $1,000 refund
    Dad gets $0.00 refund

    Now, if we calculate it the other way (give Dad the exemption):

    Mom gets $0.00 refund
    Dad gets $2,000 refund

    So, even though Mom doesn't legally have to give Dad the exemption, they might work out a deal where Dad gives Mom $1,500 in exchange for her signing the 8332 form. Each parent would be $500 better off in that scenario.
    This scenario is reasonably common when one parent makes considerably more than the other - OR in situations where CP makes enough that the deduction has phased out and isn't worth anything to them.

    But if the two can't sit down and reasonably discuss it and be open about their finances, I'd probably just stick with the IRS rules unless there's a court order that says that CP has to sign an 8332.
    This would only work if he's an honest person. My ex after we were seperated said he would give me $X out of his tax return because he trashed the transmission in my truck. Never saw a dime. Even after a court order. Couldn't even take him back to court for contempt, wouldn't have done any good because neither lived in that jurisdiction any longer.
  6. #6
    LdiJ is offline Senior Member
    Join Date
    May 2004
    Posts
    65,886
    Quote Originally Posted by jenmcre View Post
    What is the name of your state (only U.S. law)? I live in the state of Florida, My ex husband wants to claim our two children on his tax returns. He currently is in arrears for over 9000 dollars and hasn't seen them since 2007. Until about 6 months ago he refused to have any contact with them from jan of 2009 til about may of 2010 including phone and email.
    Does he have the right to claim them on his 2010 taxes. If so what do i need to do to stop this.
    There are two different issues here.

    1) What the federal tax code and the IRS says, which is that only the custodial parent can claim the children unless the custodial parent voluntarily relinquishes that right to the non custodial parent, by giving that parent a signed form 8332 or its equivalent.

    2) What the court orders say. If the court orders state that dad is to get the exemption, even if he is behind in child support, then the custodial parent is required to given him a form 8332.

    Now, its quite possible that a judge would NOT ding a custodial parent for refusing to allow the ncp to claim the deduction when they are 9k in arrears for child support.

    Its also quite possible that the ncp would claim the children anyway, even knowing they were not allowed to do so, (if they are not allowed to do so) which would mean that the custodial parent would have to file a paper return.
  7. #7
    mistoffolees is offline Senior Member
    Join Date
    Mar 2008
    Posts
    21,315
    Quote Originally Posted by Artemis_ofthe_Hunt View Post
    This would only work if he's an honest person. My ex after we were seperated said he would give me $X out of his tax return because he trashed the transmission in my truck. Never saw a dime. Even after a court order. Couldn't even take him back to court for contempt, wouldn't have done any good because neither lived in that jurisdiction any longer.
    I would first have him sign a document stating that he agreed to pay $x if I sign an 8332 form. If he refused to pay, you could take that to small claims court to recover the money.
  8. #8
    Artemis_ofthe_Hunt is offline Senior Member
    Join Date
    Jul 2009
    Location
    Smallville MN
    Posts
    1,951
    Quote Originally Posted by mistoffolees View Post
    I would first have him sign a document stating that he agreed to pay $x if I sign an 8332 form. If he refused to pay, you could take that to small claims court to recover the money.
    Say we're only talking about a $2000 dollar return... by the time you paid court costs, filing fees, etc for small claims court, you'd end up with a big fat nothing. If you did end up with a judgment against (more likely than not), you'd still have to collect it. Not saying that its not possible, just not as easy as your explanation makes it sound.
  9. #9
    LdiJ is offline Senior Member
    Join Date
    May 2004
    Posts
    65,886
    Quote Originally Posted by mistoffolees View Post
    Right, so OP doesn't need to do anything to stop it - just put the correct exemption information on her own return. Eventually, the IRS will discover that two people are claiming the same kids and investigate. If she's got the kids over 50% of the nights, then she is entitled to the exemption and Dad is going to end up paying back taxes and penalties.
    Assuming there are no court orders to the contrary.

    As an aside, if the parents get along reasonably well, it is always worth calculating taxes both ways - Dad gets the exemption and Mom gets the exemption and then agreeing to what ever is the most practical.

    For example, let's say Mom is CP and if we calculate taxes with Mom getting the exemption:
    Mom gets $1,000 refund
    Dad gets $0.00 refund

    Now, if we calculate it the other way (give Dad the exemption):

    Mom gets $0.00 refund
    Dad gets $2,000 refund

    So, even though Mom doesn't legally have to give Dad the exemption, they might work out a deal where Dad gives Mom $1,500 in exchange for her signing the 8332 form. Each parent would be $500 better off in that scenario.

    This scenario is reasonably common when one parent makes considerably more than the other - OR in situations where CP makes enough that the deduction has phased out and isn't worth anything to them.

    But if the two can't sit down and reasonably discuss it and be open about their finances, I'd probably just stick with the IRS rules unless there's a court order that says that CP has to sign an 8332.
    That can and does sometimes work with parents that trust each other and get along well enough to do that.
  10. #10
    LdiJ is offline Senior Member
    Join Date
    May 2004
    Posts
    65,886
    Quote Originally Posted by mistoffolees View Post
    I would first have him sign a document stating that he agreed to pay $x if I sign an 8332 form. If he refused to pay, you could take that to small claims court to recover the money.
    That one won't work. An informal arrangement between two parents to share tax refunds based on the best interest of their child is perfectly legal.

    Selling a tax exemption is a federal crime. So by making him sign a contract and then trying to enforce said contract to turn a best interests decision into a federal crime.

    Also, in the OP's specific case, it absolutely would not be to her benefit. Since he is 9k in arrears as it is, his federal refund is almost guaranteed to be seized...so she is going to get the money anyway. Why should she give up tax benefits that she is entitled to receive, so that his arrearage could be reduced?..she would be paying herself basically.
  11. #11
    mistoffolees is offline Senior Member
    Join Date
    Mar 2008
    Posts
    21,315
    Quote Originally Posted by Artemis_ofthe_Hunt View Post
    Say we're only talking about a $2000 dollar return... by the time you paid court costs, filing fees, etc for small claims court, you'd end up with a big fat nothing. If you did end up with a judgment against (more likely than not), you'd still have to collect it. Not saying that its not possible, just not as easy as your explanation makes it sound.
    Court costs and filing fees in your small claims court would eat up a $2,000 judgment? You must have the most expensive small claims court on the planet.

    Fortunately, ours is $35, IIRC.
  12. #12
    Artemis_ofthe_Hunt is offline Senior Member
    Join Date
    Jul 2009
    Location
    Smallville MN
    Posts
    1,951
    Quote Originally Posted by mistoffolees View Post
    Court costs and filing fees in your small claims court would eat up a $2,000 judgment? You must have the most expensive small claims court on the planet.

    Fortunately, ours is $35, IIRC.
    Ok, let me clarify. You suggested that NCP give the CP 1500.00 and keepy 500.00 to himself in exchange for being able to take the exemption. Say CP gives the 8832 to the NCP. He agrees to give the 1500.00 to her upon receipt of the return. He doesn't. CP has to take off of work (assuming she works during the week), has to take the time to fill out the docs, etc... see where I am going with this?

    Not so much the filing fees, as the time it takes to go about this. I'd be more apt to share the exemption every other year, IF he was current on his support... maybe. I wouldn't agree to let him take the exemption in this case, period. Besides, what LD stated, too... forgot about the part about selling the exemption being a federal crime...
  13. #13
    mistoffolees is offline Senior Member
    Join Date
    Mar 2008
    Posts
    21,315
    Quote Originally Posted by Artemis_ofthe_Hunt View Post
    Ok, let me clarify. You suggested that NCP give the CP 1500.00 and keepy 500.00 to himself in exchange for being able to take the exemption. Say CP gives the 8832 to the NCP. He agrees to give the 1500.00 to her upon receipt of the return. He doesn't. CP has to take off of work (assuming she works during the week), has to take the time to fill out the docs, etc... see where I am going with this?
    I can buy that. If ex is going to be a jerk about it, it's not worth messing around for a few hundred dollars. That's why I said it really only works if the two people can work together reasonably well.

    Quote Originally Posted by Artemis_ofthe_Hunt View Post
    Not so much the filing fees, as the time it takes to go about this. I'd be more apt to share the exemption every other year, IF he was current on his support... maybe. I wouldn't agree to let him take the exemption in this case, period. Besides, what LD stated, too... forgot about the part about selling the exemption being a federal crime...
    I'm assuming that people are smart enough to write an agreement that doesn't involve selling the tax exemption but ends up with essentially the same result.
  14. #14
    Artemis_ofthe_Hunt is offline Senior Member
    Join Date
    Jul 2009
    Location
    Smallville MN
    Posts
    1,951
    Quote Originally Posted by mistoffolees View Post
    I can buy that. If ex is going to be a jerk about it, it's not worth messing around for a few hundred dollars. That's why I said it really only works if the two people can work together reasonably well.



    I'm assuming that people are smart enough to write an agreement that doesn't involve selling the tax exemption but ends up with essentially the same result.
    Splitting short hairs there though... Cheating is cheating, whether or not you're being obvious about it or not.
  15. #15
    CJane is offline Senior Member
    Join Date
    Feb 2005
    Location
    Kansas City
    Posts
    19,898
    Quote Originally Posted by LdiJ View Post

    Also, in the OP's specific case, it absolutely would not be to her benefit. Since he is 9k in arrears as it is, his federal refund is almost guaranteed to be seized...so she is going to get the money anyway. Why should she give up tax benefits that she is entitled to receive, so that his arrearage could be reduced?..she would be paying herself basically.
    That's what I was thinking. If he's that far in arrears - and CSE is aware of how far in arrears he is, then an interception of any refund due is almost guaranteed to happen.

    In my state, if the NCP is more than $500 in arrears, the interception request goes out. At $5000, it's felony non-support.

Similar Threads

  1. Replies: 9
    Last Post: 12-07-2011, 01:07 PM
  2. Replies: 6
    Last Post: 12-27-2010, 08:57 AM
  3. Replies: 2
    Last Post: 11-03-2010, 01:44 PM
  4. Non-custodial parent does not return child
    By lillianfoney in forum Child Custody & Visitation
    Replies: 2
    Last Post: 05-15-2008, 07:02 AM
  5. daughter has not return to custodial parent!
    By katekiess in forum Child Custody & Visitation
    Replies: 3
    Last Post: 05-31-2007, 06:07 PM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

© 1995-2012 Advice Company, All Rights Reserved

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.