Dependent question

[Kman73]

What is the name of your state (only U.S. law)? California
Thank you in advance for any suggestions or help.
Back in 2006 when the other parent and I went to family court to establish child support she was granted the right to claim our son as a dependent. This was fine as she was working then. She has not worked in over 2 1/2 years. Last year unbeknownst to me she had her mom claim our son and give her the return money. Was that legal? Last year the other parent did not work as well and was in a recovery home(not important), I provide a room for my son, as well as all the essentials in life. The other parent is now out of recovery and living on welfare and as of December we have 50/50 custody. Now it is tax time and I was wondering where I stand in this situation and if she can continue to give our son to her mom as a dependent and whom she does not support. Thank you and sorry if this was long winded

 

[LdiJ]

What is the name of your state (only U.S. law)? California
Thank you in advance for any suggestions or help.
Back in 2006 when the other parent and I went to family court to establish child support she was granted the right to claim our son as a dependent. This was fine as she was working then. She has not worked in over 2 1/2 years. Last year unbeknownst to me she had her mom claim our son and give her the return money. Was that legal? Last year the other parent did not work as well and was in a recovery home(not important), I provide a room for my son, as well as all the essentials in life. The other parent is now out of recovery and living on welfare and as of December we have 50/50 custody. Now it is tax time and I was wondering where I stand in this situation and if she can continue to give our son to her mom as a dependent and whom she does not support. Thank you and sorry if this was long winded

Whether or not it was legal for grandma to claim the child depends on info that we don't have here. It may have been legal, it may not have been legal. Its NOT illegal for grandma to gift money to her daughter.

You have a court order that says that she gets the exemption. For 2009 she was also the custodial parent (the parent with the most overnights for the year) therefore in order for you to claim the exemption for the child, she would have to give you a signed form 8332, releasing the exemption to you.

That would not release the right to claim EITC or daycare credits however, because only the custodial parent can claim those.

For all practical purposes however, if mom truely had no income for 2009, then if you claim the child, and grandma claims the child, you would win under the tiebreaker rules. The IRS would rule in your favor, but you would be violating the court order. However, mom could not have you held in contempt, because mom had no income and could not file a tax return. Again, this assumes that mom has NO earned income at all.

For the tax year 2010 forward, if its a true 50/50 situation (and that's arguable in any year that isn't a leap year, because one parent is going to have at least one more overnight than the other in a non-leap year and holidays throw things off 50/50 as well sometimes) under the tax code the parent with the higher AGI is entitled to the exemption. Again, however, you would be violating the court order if you claimed the child.

You need to take it back to court and ask the judge to order that as long as mom is not working, that you get to claim the exemption for the child, and that if mom starts working again, that you alternate the exemption every other year. That would be very equitable, and should be an easy win in court.

 

[Kman73]

Thank you for that well written reply. I don't think the fact that I am current and have always payed my CS is of any importance here. The other parent has no income to declare but like myself is strapped financialy and could use whatever she can get. I understand that for future years having the alternating claiming years is the best solution. So for the time being, if she declines to sign it seems that the best thing for me to do to keep the peace is to accept her decision and get it changed legally...