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  1. #1
    lisaposey is offline Junior Member
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    divorce/ftp child support/arrears/tax deduction

    What is the name of your state?
    I live in Kentucky, divorced in Illinois, where the tax deduction for our two children
    were divided between us, now he is in kentucky I think, he is sporadic in paying
    his child support, he is in arrears around 1700 dollars, and im about to
    sign enforcement papers (again) with the child support enforcement office
    on Monday
    my question is this, since he is shown to be apparent deadbeat, do i have
    to see an attorney to have his allowance for the tax deduction for son #1 revoked?
    or can the child support office do it, what do I need to do?
  2. #2
    mistoffolees is offline Senior Member
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    Quote Originally Posted by lisaposey View Post
    What is the name of your state?
    I live in Kentucky, divorced in Illinois, where the tax deduction for our two children
    were divided between us, now he is in kentucky I think, he is sporadic in paying
    his child support, he is in arrears around 1700 dollars, and im about to
    sign enforcement papers (again) with the child support enforcement office
    on Monday
    my question is this, since he is shown to be apparent deadbeat, do i have
    to see an attorney to have his allowance for the tax deduction for son #1 revoked?
    or can the child support office do it, what do I need to do?
    Depends on the wording of your agreement.

    If the agreement says "he gets deduction for child #1 as long as he is current in child support", then you can just claim the deduction (although this can cause some problems with the IRS if you don't have primary physical custody). However, this is unusual. More likely, the agreement would say "he gets the deduction for child #1" with no caveat. In that case, you need to see an attorney and ask for the court to modify the agreement.
  3. #3
    MFinancier is offline Member
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    Quote Originally Posted by mistoffolees View Post
    Depends on the wording of your agreement.

    If the agreement says "he gets deduction for child #1 as long as he is current in child support", then you can just claim the deduction (although this can cause some problems with the IRS if you don't have primary physical custody). However, this is unusual. More likely, the agreement would say "he gets the deduction for child #1" with no caveat. In that case, you need to see an attorney and ask for the court to modify the agreement.
    I just went through the tax issues with a noncustodial in Illinois who had an agreement for the child dependency exemptions and child tax credit, but who's spouse refused to sign IRS form 8332 to release the exemption and used the kids as dependents despite the agreement. He had to file a copy of his agreement with his taxes that stated the period he would recieve the exemptions "WITHOUT" regard to any condition, such as payment of support. His agreement is subject to review if his ex spouse starts earning a minimum of 25K. It is my understanding that this agreement cannot be unilaterally revoked for non payment of child support without court order. Hope this helps.
  4. #4
    mistoffolees is offline Senior Member
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    Quote Originally Posted by MFinancier View Post
    I just went through the tax issues with a noncustodial in Illinois who had an agreement for the child dependency exemptions and child tax credit, but who's spouse refused to sign IRS form 8332 to release the exemption and used the kids as dependents despite the agreement. He had to file a copy of his agreement with his taxes that stated the period he would recieve the exemptions "WITHOUT" regard to any condition, such as payment of support. His agreement is subject to review if his ex spouse starts earning a minimum of 25K. It is my understanding that this agreement cannot be unilaterally revoked for non payment of child support without court order. Hope this helps.
    That's essentially what I said.

    The normal agreement says that person A gets the deduction. Period. In that case, person A gets the deduction whether they pay support or not. Person B has to go to court to ask for a change in the agreement.

    However, there are a small number of agreements out there which say "person A gets the deduction as long as they are current in paying child support'. These are bad agreements, but they still exist. IN THAT CASE ONLY, if person A is not paying child support and person B has physical custody, then person B can take the deduction - on the basis of their physical custody. Person A can try to claim the deduction, but they have the burden of proof and would have to prove that they're current.

    In practice, the IRS doesn't like (and may not even consider) agreements which are conditional, so the person with physical custody would probably be OK in this case. Person A could sue them, but they'd probably lose unless they can prove that they're current on support.
  5. #5
    fairisfair is offline Senior Member
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    actually, there are not a SMALL NUMBER of agreements that are conditional.

    in fact MOST agreements are conditional upon the obligor being current on child support. In fact, many states require that a payor being completely current, not just for the current calendar year, but over all.

    Those agreements that are NOT conditional are the work of poor planning and/or incompetence.
    Last edited by fairisfair; 05-02-2008 at 10:32 AM.
  6. #6
    fairisfair is offline Senior Member
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    Quote Originally Posted by mistoffolees View Post
    That's essentially what I said.

    The normal agreement says that person A gets the deduction. Period. In that case, person A gets the deduction whether they pay support or not. Person B has to go to court to ask for a change in the agreement.

    However, there are a small number of agreements out there which say "person A gets the deduction as long as they are current in paying child support'. These are bad agreements, but they still exist. IN THAT CASE ONLY, if person A is not paying child support and person B has physical custody, then person B can take the deduction - on the basis of their physical custody. Person A can try to claim the deduction, but they have the burden of proof and would have to prove that they're current.

    In practice, the IRS doesn't like (and may not even consider) agreements which are conditional, so the person with physical custody would probably be OK in this case. Person A could sue them, but they'd probably lose unless they can prove that they're current on support.
    Bad for who??? are you retarded?

    Why SHOULD a parent get to claim a child as a dependent if they aren't supporting them? that is the stupidest thing I have heard yet today. and I get up pretty darned early.
  7. #7
    TinkerBelleLuvr is offline Senior Member
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    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.
    The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.

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

    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.
    http://www.irs.gov/publications/p501/ar02.html#d0e3180
  8. #8
    TinkerBelleLuvr is offline Senior Member
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    If there is a stipulation in the court order, then the NCP MUST have a signed 8332 giving them the exemption.

    As for the OP, if her order is not conditional, she needs to modify her court order.
  9. #9
    MFinancier is offline Member
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    I'm not sure whats going on here but I think mistoffolees was referring to the fact that conditional orders for these exemptions are not technically acceptable by the IRS in lieu of a properly signed form 8332, and may cause unneccessary problems simply because the residential custodian could refuse to sign form 8332 for ANY reason...and often do. I don't think he was making any moral judgements. Wouldn't this put all non custodials in a perpetually inferior position? Aren't there better ways of ensuring child support than creating tax nightmares over exemptions? I defer to you all on this one...
  10. #10
    LdiJ is offline Senior Member
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    Quote Originally Posted by MFinancier View Post
    I'm not sure whats going on here but I think mistoffolees was referring to the fact that conditional orders for these exemptions are not technically acceptable by the IRS in lieu of a properly signed form 8332, and may cause unneccessary problems simply because the residential custodian could refuse to sign form 8332 for ANY reason...and often do. I don't think he was making any moral judgements. Wouldn't this put all non custodials in a perpetually inferior position? Aren't there better ways of ensuring child support than creating tax nightmares over exemptions? I defer to you all on this one...
    Under the tax code the non custodial parents ARE in an inferior position. The tax codes gives the deduction to the custodial parent, unless the custodial parent waives the exemption by signing a form 8332 or its equilvalent (hence being able to use agreements if they meet the criteria).

    The way a judge gets around that is by either ordering the parent to sign the form 8332, or by doing the smart thing, and taking the exemption into consideration when the child support is calculated.

    There have been noises about the IRS doing away with form 8332 completely, therefore forcing state court judges to deal with the exemption, in the child support calculation.
  11. #11
    Silverplum is offline Senior Member
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    Quote Originally Posted by LdiJ View Post
    Under the tax code the non custodial parents ARE in an inferior position.

    *gasp!*


    ((LdiJ!!))
  12. #12
    seniorjudge is offline Senior Member
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    Quote Originally Posted by Silverplum View Post

    *gasp!*


    ((LdiJ!!))
    Can you wire me my $4.50?

    I need to buy a hamburger at McDonald's.

    If I get the $4.50, I will be able to buy a tablespoon of gas.
    There are two rules for success:

    (1) Never tell everything you know.
  13. #13
    Silverplum is offline Senior Member
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    Quote Originally Posted by seniorjudge View Post
    Can you wire me my $4.50?

    I need to buy a hamburger at McDonald's.

    If I get the $4.50, I will be able to buy a tablespoon of gas.
    *bzzzzt!* went the wire, $4.50 delivered.
  14. #14
    seniorjudge is offline Senior Member
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    Quote Originally Posted by Silverplum View Post
    *bzzzzt!* went the wire, $4.50 delivered.
    Cool!

    Thanks.

    I got it BUT it's too late. Now it will buy me only a half-tablespoon of gas so I'll have to drive to Burger King instead, mix up some ketchup (it IS a vegetable, remember?) and water and drink my lunch.
    There are two rules for success:

    (1) Never tell everything you know.
  15. #15
    mistoffolees is offline Senior Member
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    Quote Originally Posted by fairisfair View Post
    Bad for who??? are you retarded?

    Why SHOULD a parent get to claim a child as a dependent if they aren't supporting them? that is the stupidest thing I have heard yet today. and I get up pretty darned early.
    Read the IRS rules.

    The IRS rules are roughly as follows:

    1. Who has primary physical custody? The person who has the child >50% of the time will get the deduction unless there is a court order or other agreement otherwise (such as a signed 8332 form).

    2. If the two parents have EXACTLY 50:50, then the IRS has tie breaker rules (the first one is who has the greater adjusted gross income).

    You can sign an agreement or the court can order that the deduction be distributed otherwise.

    So, in your eyes, knowing the IRS rules makes me retarded? Amazing.
    Last edited by mistoffolees; 05-02-2008 at 01:35 PM.

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