Tax Exemption/Child Support

[rtanner]

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

My question is in reference to my final decree and the tax exemption on my son. My decree states "I may claim the exemption every other year IF my income is $13,0000.00 or greater" I agreed at the time because I was able to claim EIC.

I was a stay at home mother during the tax year of 2008 and did not have income. My current husbands income was my income which is greater than $13,0000.00.

Can I claim the exemption due to the fact his income was my source of income?

Thank You.

[LdiJ]

Originally Posted by rtanner

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

My question is in reference to my final decree and the tax exemption on my son. My decree states "I may claim the exemption every other year IF my income is $13,0000.00 or greater" I agreed at the time because I was able to claim EIC.

I was a stay at home mother during the tax year of 2008 and did not have income. My current husbands income was my income which is greater than $13,0000.00.

Can I claim the exemption due to the fact his income was my source of income?

Thank You.

Are you the parent with primary custody? If so, I recommend that you take it back to court to modify the language regarding the exemption to simply every other year, without any conditions.

If you are the custodial parent the IRS would rule in your favor...but that language could cause a state court judge to rule in dad's favor.

[rtanner]

Thanks!

We split time 50/50. Also, he pays no child support and makes considerably more money than I. We pay everything 50/50.

Are you saying the IRS considers my current husband's income as my income. Also, If I filed a motion to modify final decree, what happens with the exemption this(2008) tax year. My x-husband is going to claim my son. Will he have to repay me at the time of the judge's decision to change the language?

Thanks again.

[mistoffolees]

Originally Posted by rtanner

Thanks!

We split time 50/50. Also, he pays no child support and makes considerably more money than I. We pay everything 50/50.

Are you saying the IRS considers my current husband's income as my income. Also, If I filed a motion to modify final decree, what happens with the exemption this(2008) tax year. My x-husband is going to claim my son. Will he have to repay me at the time of the judge's decision to change the language?

Thanks again.

Your income is only peripherally relevant here.

Your decree is not going to be accepted by the IRS. Assuming that it was issued in 2008 or earlier, the IRS will not accept conditional dependent declarations in a divorce decree. That is, if the decree says "person A gets the deduction IF they do X", the IRS ignores it and falls back on their normal rules of who gets the deduction.

The normal rules are as follows:
1. Who has primary physical custody? In a case like yours where it's 50:50, you're going to have to count the nights to see who had the most overnights. That's the person who gets the deduction. Even one more night per year is enough to get the deduction, although it might be tough to prove if you both claim you had one more night than the other. The IRS would probably ask for a calendar, but that could easily be forged, so I don't know how they determine it if both parties claim more overnights.

2. Since 2008 was a leap year, it's possible that you both had EXACTLY the same number of overnights. In that case, the IRS has tie-breaker rules. The first rule is whoever has the higher AGI gets the deduction (I'm pretty sure that's your own income, and not your joint income with your current husband, but you can be sure Ldij will correct me if that's wrong). So, since you don't have income, if you have the same number of overnights, he gets the deduction.

The complexity is that the state court might consider the decree enforceable even though the wording is contrary to IRS rules. In that case, the IRS would award YOU the deduction, but your ex could sue you to recover the difference between his tax payment with and without the deduction. He could NOT force the IRS to give him the deduction. Conceivably, the state might force you to sign an 8332 form to give him the deduction based on the wording of the divorce decree. In fact, that seems like the kind of thing a lot of state court judges might do - force you to follow the agreement even though it's contrary to IRS rules.

For 2008, I'd consider it a lost cause. You don't meet the criteria, so a state court would conceivably rule against you. If it goes to the IRS and you both have equal numbers of overnights, your ex-husband will win on the basis of higher AGI.

If you go to court to have it changed, the court can not make their changes retroactive. They can change the wording of the clause covering the 2009 deduction, but not the 2008 one.

[rtanner]

This is what I thought, but wanted a second opinion.

I will file a motion requesting child support. Do you know how Ohio determines shared parenting support? All the calculators online say different amounts and are not for 50/50 situations. I have tried to complete the worksheets but are very confusing.


Thanks!!!

[LdiJ]

Originally Posted by rtanner

Thanks!

We split time 50/50. Also, he pays no child support and makes considerably more money than I. We pay everything 50/50.

Are you saying the IRS considers my current husband's income as my income. Also, If I filed a motion to modify final decree, what happens with the exemption this(2008) tax year. My x-husband is going to claim my son. Will he have to repay me at the time of the judge's decision to change the language?

Thanks again.

Well, now that I know that you are 50/50, I have to give you somewhat different advice. The IRS defines the custodial parent as the parent with whom the child spent the most nights. (with a tiebreaker going to the parent with the higher AGI if nights are exactly equal). Since the only possibility of nights being exactly equal is on a leap year, you would need to get out the calendar and count...taking holidays into consideration. If dad wins the count for any given year, the exemption goes to him. If you win the count for any given year, the exemption goes to you. It you tie, if dad's AGI on his joint or single return, is higher than the AGI on your joint return, the exemption goes to dad, or the reverse if yours is higher.

Seriously, you need to take it back to court and get the language changed in the order. Its not fair for dad to get the exemption every year when you are paying the expenses 50/50 with no child support.

[LdiJ]

Originally Posted by mistoffolees

Your income is only peripherally relevant here.

Your decree is not going to be accepted by the IRS. Assuming that it was issued in 2008 or earlier, the IRS will not accept conditional dependent declarations in a divorce decree. That is, if the decree says "person A gets the deduction IF they do X", the IRS ignores it and falls back on their normal rules of who gets the deduction.

The normal rules are as follows:
1. Who has primary physical custody? In a case like yours where it's 50:50, you're going to have to count the nights to see who had the most overnights. That's the person who gets the deduction. Even one more night per year is enough to get the deduction, although it might be tough to prove if you both claim you had one more night than the other. The IRS would probably ask for a calendar, but that could easily be forged, so I don't know how they determine it if both parties claim more overnights.

2. Since 2008 was a leap year, it's possible that you both had EXACTLY the same number of overnights. In that case, the IRS has tie-breaker rules. The first rule is whoever has the higher AGI gets the deduction (I'm pretty sure that's your own income, and not your joint income with your current husband, but you can be sure Ldij will correct me if that's wrong). So, since you don't have income, if you have the same number of overnights, he gets the deduction.

The complexity is that the state court might consider the decree enforceable even though the wording is contrary to IRS rules. In that case, the IRS would award YOU the deduction, but your ex could sue you to recover the difference between his tax payment with and without the deduction. He could NOT force the IRS to give him the deduction. Conceivably, the state might force you to sign an 8332 form to give him the deduction based on the wording of the divorce decree. In fact, that seems like the kind of thing a lot of state court judges might do - force you to follow the agreement even though it's contrary to IRS rules.

For 2008, I'd consider it a lost cause. You don't meet the criteria, so a state court would conceivably rule against you. If it goes to the IRS and you both have equal numbers of overnights, your ex-husband will win on the basis of higher AGI.

If you go to court to have it changed, the court can not make their changes retroactive. They can change the wording of the clause covering the 2009 deduction, but not the 2008 one.

I should have read your response before I responded...good job Misto.