claiming dependants

[CHRISB133]

What is the name of your state (only U.S. law)? ny.....how can i stop my ex- wife from continuing to claim our son on her taxes, we agreed to switch years.

 

[mommyof4]

Is it in the court order that you would alternate years? If not, you have no recourse to force her to switch every year (this is assuming, of course, that she is legally claiming the children to begin with).

 

[CHRISB133]

yes it is in the stipulation of agreement. she claims him in the odd years and i claim him in the even years.she is supposed to " execute and deliver to the husband IRS form 8332 for the particular tax year that the husband has fulfilled his financial obligations"..... now here is a few questions " financial obligations" mean child support, right?... she is trying to tie in a seperate thing we agreed on pertaining to a 529 plan as also being a "financial obligation".. is this legal to do, she is trying to claim him again this year.

 

[LdiJ]

yes it is in the stipulation of agreement. she claims him in the odd years and i claim him in the even years.she is supposed to " execute and deliver to the husband IRS form 8332 for the particular tax year that the husband has fulfilled his financial obligations"..... now here is a few questions " financial obligations" mean child support, right?... she is trying to tie in a seperate thing we agreed on pertaining to a 529 plan as also being a "financial obligation".. is this legal to do, she is trying to claim him again this year.

I would guess that it means that you must be current on all of your financial obligations under your court orders, for the year. That would not be just child support. That would include medical and dental expenses, daycare if daycare is involved, and maybe even the 529 plan if it was part of the court order.

 

[mistoffolees]

yes it is in the stipulation of agreement. she claims him in the odd years and i claim him in the even years.she is supposed to " execute and deliver to the husband IRS form 8332 for the particular tax year that the husband has fulfilled his financial obligations"..... now here is a few questions " financial obligations" mean child support, right?... she is trying to tie in a seperate thing we agreed on pertaining to a 529 plan as also being a "financial obligation".. is this legal to do, she is trying to claim him again this year.

Your attorney blew it.

If there were no conditions to be met (that is, the agreement said that you take the even years and she takes the odd years), then it would be easy. You would just take the deduction on the years you were supposed to and when the IRS called you, you show them the agreement.

As it is, the IRS will not accept a conditional assignment of dependency. That is, they will not accept an agreement like yours that says you get the deduction in even years but only if your obligations are paid. Since that is useless to the IRS, they will go back to their rules which say the custodial parent get the deduction (with some tie-breakers).

Your remaining option is go back to court and ask the court to order her to sign the 8332 - which will solve the problem as far as the IRS is concerned. You will need to be current on your financial obligations to get the court to order it.

Financial obligations means just that. A section 529 is not an obligation - you have no obligation to pay for your kids' college (unless she got the court to order it in the divorce decree, of course) and even if you did have to pay for college, there's no rule that says you have to use a 529 plan. I would say that it means anything specifically spelled out in the agreement - child support, medical care (if ordered), and so on.

 

[CHRISB133]

Thanks guys & gals for your help....

 

[LdiJ]

I need to clarify a few things Misto....

Your attorney blew it.

If there were no conditions to be met (that is, the agreement said that you take the even years and she takes the odd years), then it would be easy. You would just take the deduction on the years you were supposed to and when the IRS called you, you show them the agreement.

That is true for 2008 back, for 2009 forward the IRS WILL NOT accept any court order, conditional or not. The IRS will ONLY accept form 8332.

As it is, the IRS will not accept a conditional assignment of dependency. That is, they will not accept an agreement like yours that says you get the deduction in even years but only if your obligations are paid. Since that is useless to the IRS, they will go back to their rules which say the custodial parent get the deduction (with some tie-breakers).

There are no tiebreakers on the custodial parent issue. The first tiebreaker test is did the two parents combined provide more than 50% of the child's support (therefore ensuring that no one else is the person who can legally claim the children), the second tiebreaker test is who is the custodial parent (in other words, the custodial parent, as defined by the IRS not by the court orders) gets the exemption. The third tiebreaker comes into play ONLY if both parents have an equal number of overnights with the child, and that tiebreaker is which parent has the highest AGI. The tiebreaker tests are progressive. As soon as one tiebreaker is met, the tests stop.

Your remaining option is go back to court and ask the court to order her to sign the 8332 - which will solve the problem as far as the IRS is concerned. You will need to be current on your financial obligations to get the court to order it.

I agree with this advice. Unfortunately "financial obligations" could be open to interpretation. His attorney did mess up, but not in the way that you think. The standard required language in Indiana is that the non-custodial parent only gets the exemption if they are current with their child support. Where his attorney messed up was making it "financial obligations" instead of defining specifically what those obligations were in reference to claiming the exemption.

Financial obligations means just that. A section 529 is not an obligation - you have no obligation to pay for your kids' college (unless she got the court to order it in the divorce decree, of course) and even if you did have to pay for college, there's no rule that says you have to use a 529 plan. I would say that it means anything specifically spelled out in the agreement - child support, medical care (if ordered), and so on.

Again, assume that the court orders don't specifically state that he must contribute to a 529 plan. Our court orders specifically ordered each of us to contribute a flat amount of money monthly to a college fund for our daughter.