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Ex is claiming kids on her taxes; decree says otherwise

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What is the name of your state (only U.S. law)? Connecticut

(Note: This was also posted under Tax Law... honestly, I'm not sure who would cover such a question.)

It's been over ten years since the divorce, and I still have to battle this woman nearly daily. Heavy sigh.

The latest drama now involves the IRS. Our divorce decree states that whomever is making more money per year gets to claim our three children on their taxes. Recently, I had to increase my amount of support because she claimed she wasn't making enough, so that would definitely be me.

I was recently contacted by the IRS because in 2006 the kids were claimed twice. Because the decree is conditional (i.e. the condition of whomever makes more), I have to get her to sign a form from the IRS to get them off my back. She, of course, won't do it.

It seems to me that she is at least in contempt of court for claiming the kids. Her actions - claiming the kids, then refusing to remedy the situation - are blatant acts of malice. Frankly, after putting up with her antics for ten years, I'm tired of being patient and doing the right thing by her. I'm truly tempted to withhold my child support check until I get the signature, but I'm not sure if that won't make things worse.

What are my rights here? What kind of legal recourse do I have?
 
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Farfalla

Member
What is the name of your state (only U.S. law)? Connecticut

It's been over ten years since the divorce, and I still have to battle this woman nearly daily. Heavy sigh.
The latest drama now involves the IRS. Our divorce decree states that whomever is making more money per year gets to claim our three children on their taxes. Recently, I had to increase my amount of support because she claimed she wasn't making enough, so that would definitely be me.
I was recently contacted by the IRS because in 2006 the kids were claimed twice. Because the decre is conditional (i.e. the condition of whomever makes more), I have to get her to sign a form from the IRS to get them off my back. She, of course, won't do it.
It seems to me that she is at least in contempt of court for claiming the kids. Her actions - claim the kids, then refusing to remedy the situation - are blantatly done out of malice. Frankly, after putting up with her antics for ten years, I'm tired of being patient and doing the right thing by her. I'm truly tempted to withhold my child support check until I get the signature, but I'm not sure if that won't make things worse.
What are my rights here? What kind of legal recourse do I have?
You cannot withhold child support. I would cause you more problems than it is worth.

Did you provide the IRS with a copy of your divorce so that they can make the determination?

Now something comes to mind. One of you have to sign the form for 2006 to give the other the right to take the deductions… is she pressuring you to sign for her to have the right? Why not? Why is it assumed that she has this right? Put pressure back on her that she did not have the right and you refuse to give it to her.

The way my ex and I handled it in our divorce is that as part of all the papers we signed, we signed the IRS tax forms giving us each the tax deduction every other year. For example the form I have signed by my ex lists the actual yeas, 1997, 1999, 2001, 2003 (etc) when I got the deduction. His tax form lists the even years. You might need to go back to court or negotiate such a concrete arrangement with her to prevent this in the future.
 

CourtClerk

Senior Member
Why don't you go back and modify the order. Something to the effect of each one of you claims one child, then the third child is rotated between the two of you. One of you gets even years, the other gets odds.

That whole "whoever makes more money thing" is just poorly written and is asking for this kind of mess to happen.
 
Now something comes to mind. One of you have to sign the form for 2006 to give the other the right to take the deductions… is she pressuring you to sign for her to have the right? Why not? Why is it assumed that she has this right? Put pressure back on her that she did not have the right and you refuse to give it to her.
You've got it backwards... per our divorce decree, she has NO LEGAL RIGHT to claim the kids, but she went ahead and did so anyway. I did supply the IRS with the decree... like I said, they feel there is a "condition" (that condition being that it isn't stated by name which one of us gets to claim, rather that it goes to whomever is making more money) and therefore this form needs to be signed. She won't do it. She's entirely in the wrong here, but refuses to be cooperative. Why? Because there's no "getting-back" at me when being cooperative.

I'm not claiming to be a saint here, but right is right. I give her and the kids nearly half my salary, and I do my best to be a good dad. I truly don't deserve this and I'm tired of being harassed by her. It needs to come to a stop.

And PS - no way will I do an every other year thing. That would take a great deal of cooperation from her - and you can see how much I'm getting now.
 
Why don't you go back and modify the order. Something to the effect of each one of you claims one child, then the third child is rotated between the two of you. One of you gets even years, the other gets odds.
Sorry, no. You're asking me to give up even more money, and, in all honestly, I already give more than enough. Besides, if it isn't clear who's making more money after she's just seen all my financial records (remember, I got hauled into court to modify support recently), then there's no way she's going stay true to an every-other-year situation or something of the like. I'd be in the same boat I am now, with even less money in my pocket!

We're kind of off-point here... she knows she had no right to do this, but did it anyway. I'm done. What are my rights?
 
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Ok... then keep fighting. Good luck.
That's the best legal advice you can give?

I agree... the endless fighting seems pointless. I wish I could just get away from it... but honestly, the only way to do that avoid this woman is to abandon my kids and I won't do that. They are worth fighting over.

I can say in all honesty that if I give her the inch here today, she'll take a mile tomorrow. I'm not being greedy... I have life beyond this woman and it has financial responsibilities, too. I'm not trying to shirk anything here... I just want to do what the law says is right.

So, back to the question: how do I remedy this and keep it from happening again?
 

CourtClerk

Senior Member
That's the best legal advice you can give?
No, I gave you the legal advice I thought would stop you from going through this year after year. You said you weren't doing that... so, keep fighting with her. Stay in and out of court. Have a good time. Spend lots of money on attorney's fees. I personally don't have the time to put up with a whole lot of confusion and mess, but you obviously do. So go for it.

Good luck.
 
No, I gave you the legal advice I thought would stop you from going through this year after year.
No, you suggested I change my divorce decree to something that puts me in a worse financial situation and that would be equally difficult to enforce. Let's say I follow your plan, then my ex decides to claim the kids on one of "my" years (which she'll invariably do)? Lo and behold, I'm right back where I am now.

Trust me, she would do it in a heartbeat. One of the points I'm making here is that this woman is doing all of this out of malice towards me. To boot, she's breaking the law. To suggest that I try to placate her is pretty much laughable.

I'm asking: what do I need to remedy this? Not only with the ex, but also with the IRS? And I can I take other legal action against her as this is just a form of harassment?
 
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TinkerBelleLuvr

Senior Member
As a tax accountant, I can see that you do have a CONDITIONAL clause in your divorce decree, therefore, you require a form 8332 to claim the children.

Your condition is that you must compare income EACH year to see who made more. I can guarantee the IRS won't do that for you. Therefore, the IRS will require you to produce an 8332 for that tax year.

If you feel you are correct, then you must file a "show cause" motion to compel your X to sign the form if you are correct. Now, chances are that the same thing has happened for 2007, so you just as well make it a two-for-one special.

Now, with all this litigation going on, wouldn't it be just easier to have it spelled out instead of going back to court all the time?
 

tranquility

Senior Member
I agree with Ginny J. CT is one of the states where the court can force the parent to sign under penalty of contempt.

From Kleinrock:
The majority of states take the position that a state court may compel the custodial parent to execute a written declaration releasing the right to the dependency exemption to the non-custodial parent and, as a result, these courts order the custodial parent to execute the waiver. [13] If the parent refuses to execute the waiver, it is within the court's power to cite the parent for contempt. [14] Those states that order the execution of a waiver include Alabama, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Ohio, Tennessee, Utah, Washington, West Virginia, and Wisconsin.

To these courts, the congressional goal of certainty in the allocation of the exemption is not thwarted by forcing a custodial parent to execute a waiver. Nothing in the statute or legislative history expressly prohibits a court from requiring a waiver, nor does the statute require that the waiver be voluntary. See Rohr v. Rohr, 800 P.2d 85 (Idaho 1990). From a policy standpoint, these courts believe they are in a better position than the IRS to ensure efficient enforcement of child support orders because they have the power to compel the non-custodial parent to remit the value of the exemption to the custodial parent in the form of additional child support.
 

TinkerBelleLuvr

Senior Member
Thanks tranquility.

OP - thinking about this, you can actually give your X two choices:
She signs the 8332.

or.

She gives you the difference from what you would have received, versus what the IRS is wanting you to give back. Don't forget to ask for interest and penalties cuz the IRS is holding their hand out.

If you go to court, make sure you have time lines spelled out as to what has to happen. Have a prepared 8332 with you.
 

LdiJ

Senior Member
Ginny and Tranq are spot on, but I want to summarize/clarify some other info that seems muddy in this thread.

Under the US tax code (which rules here) the custodial parent is the only one that gets to claim the children, (defined as the person with whom the children primarily live) unless the custodial parents signs a form 8332 or its equivalent.

So, there would never be a situation where both parents would give form 8332 to the other. If the parents have a true 50/50 schedule form 8332 no longer applies, then its the tiebreaker rule of which parent has the highest AGI. So whichever court (or attorney) has been arranging for both parties to sign them, doesn't have a clue about tax law.

A court ordered agreement can substitute for a form 8332, but only if it is signed by the custodial parent, is not conditional, and spells out exactly who gets to claim the kids, for what years.

The court order in this thread is obviously conditional, therefore it does not substitute for a form 8332.

It is actually not illegal at all for mom to take the tax exemption for the kids. Under the federal tax code if the children primarily live with her, she is the one entitled to the exemption. However, she is in violation of a court order and that means that the remedy is absolutely to take her back to court for contempt.

However, you can't ask the judge to force her to sign the form 8332 for future years, because its conditional. Therefore, you may have this problem over and over again. It really would be better to something more concrete in place, but that is going to mean splitting up the children for the exemptions. That would have been the wisest things to do in the first place.
 
Tranquility, Ginny J and LdiJ:

THANK YOU so very much for your sound advice and providing legal precedent... this is what I was looking for. It's very frustrating to hear from others "nah, just throw in the towel... and if you don't, you're being stubborn and argumentative." Hopefully, when the ex realizes that she's wasted her time and money trying to pull a fast one, she'll think twice about doing so in years to come.

As an update to everyone: I contacted my attorney, who in turn contacted hers. To try and be flexible, I mentioned that perhaps it might beneficial to start trading off years (grumble, grumble). Her comment back? She'd only consider amending the decree if it said that she gets to claim the kids solely EVERY year! Can you believe it???

Like my Dad always used to say, "you can't win for losin'!"
 

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