Dependency with Custody Change

[Leah2975]

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

Per mine and my ex husbands divorce decree (pre 2009), we switch the dependency of our child every other year. At that time custody was split 50/50. The custody order has since changed, and I have full custody with him having only visitation. Do the rules change with custody changing or do I have to follow the original decree?

 

[Zigner]

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

Per mine and my ex husbands divorce decree (pre 2009), we switch the dependency of our child every other year. At that time custody was split 50/50. The custody order has since changed, and I have full custody with him having only visitation. Do the rules change with custody changing or do I have to follow the original decree?

You are required to follow the court order until such time as it is changed.

 

[Leah2975]

You are required to follow the court order until such time as it is changed.

The custody order HAS changed but makes no mention to the dependency. This is where im getting confused.

I mean, 100% of the time so far hes been behind on child support anyways and thats a stipulation in the original decree but on the off chance that he isnt next year when its supposed to be his I need clarification. Do I need to push the courts to modify the order or am I safe from him taking me to court (I already know the IRS sides with me)

 

[LdiJ]

The custody order HAS changed but makes no mention to the dependency. This is where im getting confused.

I mean, 100% of the time so far hes been behind on child support anyways and thats a stipulation in the original decree but on the off chance that he isnt next year when its supposed to be his I need clarification. Do I need to push the courts to modify the order or am I safe from him taking me to court (I already know the IRS sides with me)

If the original custody order said that you were to switch the exemption every other year, and that part of it was not changed when the custody part was changed, then that part would still be in effect. You would have to have the courts modify that part of the order. In many states the exemption is switched every other year even if one parent has primary custody. Its typical in many states as well that the parent only gets the exemption if they are current with child support.

 

[Leah2975]

If the original custody order said that you were to switch the exemption every other year, and that part of it was not changed when the custody part was changed, then that part would still be in effect. You would have to have the courts modify that part of the order. In many states the exemption is switched every other year even if one parent has primary custody. Its typical in many states as well that the parent only gets the exemption if they are current with child support.

Thank You! And I have no doubt he will be behind.

 

[Karl J]

The rules for taking the exemption has changed in your situation. For 50/50 custody, the custodial parent is the parent with the higher agi. Since you now have more than 50/50 you are entitled to the exemption regardless of what your decree says. Your decree is a matter of state law. The dependency exemption is a matter of federal tax law. The federal tax courts don't care about what your decree says your deal with him is. Moreover, if your decree says he must stay current with child support, then he could never take the exemption if you are the custodial parent. You must unconditionally allow him to take the exemption, saying that he must stay current with child support creates a condition and therefore he technically could not take the exemption even if you both agreed to it

 

[CTU]

The rules for taking the exemption has changed in your situation. For 50/50 custody, the custodial parent is the parent with the higher agi. Since you now have more than 50/50 you are entitled to the exemption regardless of what your decree says. Your decree is a matter of state law. The dependency exemption is a matter of federal tax law. The federal tax courts don't care about what your decree says your deal with him is. Moreover, if your decree says he must stay current with child support, then he could never take the exemption if you are the custodial parent. You must unconditionally allow him to take the exemption, saying that he must stay current with child support creates a condition and therefore he technically could not take the exemption even if you both agreed to it

And yet, millions of parents have that exact clause included with nary a whisper of trouble from any direction.

I wonder why that is, Karl J?

 

[Karl J]

Absolutely not true. The case law is crystal clear here. See Armstrong vs commissioner.

 

[Karl J]

"The taxpayers further argue that state courts often allocate the federal dependency exemption during divorce proceedings, and principles of federalism require the IRS and the federal courts to respect those allocations. This contention is without merit. “The state law creates legal interests but the federal statute determines when and how they shall be taxed.” United States v. Mitchell, 403 U.S. 190, 197 (1971) (quotation omitted). Determining who is entitled to federal income tax exemptions, deductions, and credits is entirely a matter of federal law, for these are questions of “when and how they shall be taxed.” State courts applying state law may allocate claims and property rights in the dissolution of a marriage, including federal tax advantages, and Congress can base the grant of federal tax advantages on those state court actions. But whether the taxpayers are entitled to the claimed dependency exemptions is a question of federal law"

 

[Leah2975]

The rules for taking the exemption has changed in your situation. For 50/50 custody, the custodial parent is the parent with the higher agi. Since you now have more than 50/50 you are entitled to the exemption regardless of what your decree says. Your decree is a matter of state law. The dependency exemption is a matter of federal tax law. The federal tax courts don't care about what your decree says your deal with him is. Moreover, if your decree says he must stay current with child support, then he could never take the exemption if you are the custodial parent. You must unconditionally allow him to take the exemption, saying that he must stay current with child support creates a condition and therefore he technically could not take the exemption even if you both agreed to it

False. The divorce was PRE 2009. Federal law allows the divorce decree to take precedence over physical custody.

 

[CTU]

Absolutely not true. The case law is crystal clear here. See Armstrong vs commissioner.

I suggest you read what I actually wrote, instead of what you think I wrote.

You don't understand much about family law at all, do you?

 

[Karl J]

And yet, millions of parents have that exact clause included with nary a whisper of trouble from any direction.

I wonder why that is, Karl J?

because only a small number of income tax returns, relatively speaking, get audited. Just because the IRS doesn't catch on, doesn't make it legit. Pretty basic stuff here. When they do audited, the federal tax courts have ruled to the opposite of your advice. It's not complicated.

 

[Just Blue]

because only a small number of income tax returns, relatively speaking, get audited. Just because the IRS doesn't catch on, doesn't make it legit. Pretty basic stuff here. When they do audited, the federal tax courts have ruled to the opposite of your advice. It's not complicated.

Karl J...What do you do for a living?

 

[CTU]

because only a small number of income tax returns, relatively speaking, get audited. Just because the IRS doesn't catch on, doesn't make it legit. Pretty basic stuff here. When they do audited, the federal tax courts have ruled to the opposite of your advice. It's not complicated.

You're still not comprehending what you're being told. Work on that before you type again, k?

 

[Karl J]

You're still not comprehending what you're being told. Work on that before you type again, k?

You haven't told anybody anything. You think that states can re-write federal tax laws... they can't. This is basic stuff