Divorced - claiming dependents

[msabinoe]

What is the name of your state (only U.S. law)? NJ/NY (both currently reside in NJ, divorce was filed in Queen's County, NY)

Hi, in a quandry, ex has claimed all three children on 2010 taxes.

Exact text of stipulation is as follows: "The Plaintiff-Husband shall take the tax deductions for the parties' child in all odd years and Defendant-Wife in all even years."

Notice the stipulation states only one child, our oldest...now he's interpreting as all three.

No IRS Form 8332 was signed by either parent. Residency of all three children is 90% with me.

I am going to claim all three triggering an audit, what will happen?

 

[TinkerBelleLuvr]

Regardless of whether it is ONE child or all three, filing the taxes is for an even year in the year 2011. File a paper return and claim the children.

 

[msabinoe]

Thanks! Any advice on the number of dependents to claim next year?

Regardless of whether it is ONE child or all three, filing the taxes is for an even year in the year 2011. File a paper return and claim the children.

 

[TinkerBelleLuvr]

You may want to take this to court for a clarification. Suggestion:

have the verbage changed to:

If the non-custodial parent is current on child support (define current), then he/she can take the oldest child, with the custodial parent claiming the youngest child. In even years, mother shall claim middle child; odd year, father claims child.

Then you don't have huge swings.

Regardless of the tax exemptions, only the custodial parent may claim EIC and the Child and Dependent Care credit.

 

[msabinoe]

Ex's claim is that the IRS will say the stipulations will supersede the Child Care credit laws. Which is why we got into the stipulation conversation and whole dispute over who is claiming whom...

Thanks again.

You may want to take this to court for a clarification. Suggestion:

have the verbage changed to:

If the non-custodial parent is current on child support (define current), then he/she can take the oldest child, with the custodial parent claiming the youngest child. In even years, mother shall claim middle child; odd year, father claims child.

Then you don't have huge swings.

Regardless of the tax exemptions, only the custodial parent may claim EIC and the Child and Dependent Care credit.

 

[TinkerBelleLuvr]

The Child Tax Credit runs with the child.

The Child and Dependent Care credit (daycare) runs with the custodial parent. The same for EIC.

 

[msabinoe]

Ah, your first comment is where he believes the divorce stipulations come into play. Regardless, you are correct for tax year 2010, even if the IRS interprets the stipulations to mean all three children, it's still not his year to claim.

I'm more concerned with next year as he is resolute in maintaining all three children are his right to claim.

The Child Tax Credit runs with the child.

The Child and Dependent Care credit (daycare) runs with the custodial parent. The same for EIC.

 

[TinkerBelleLuvr]

You need to go back to court to get this clarified sooner rather than later. Even if you interpret this for him to take the oldest child and you take the youngest and so does he, he wouldn't be in contempt because it is NOT clear.

It shouldn't be very pricey to go back to cover just this item.

 

[msabinoe]

Ha! He refuses to even discuss it let alone go back to court over it. He's adamant that he claims all three on odd years...

You need to go back to court to get this clarified sooner rather than later. Even if you interpret this for him to take the oldest child and you take the youngest and so does he, he wouldn't be in contempt because it is NOT clear.

It shouldn't be very pricey to go back to cover just this item.

 

[LdiJ]

Ha! He refuses to even discuss it let alone go back to court over it. He's adamant that he claims all three on odd years...

He cannot stop you from going back to court to get it clarified, whether he agrees to do that or not.

In any case, file a paper return. You will win this one for 2010, hands down.

 

[msabinoe]

After discussions with a divorce attorney, I was advised the NJ/NY judges will read the intent into the stipulation, not the letter of the stipulation, unless there's documentation suggesting that the intent was for him to claim only one child every other year.

That said, I have no doubt we would win any IRS case in any year but he has made clear that he would file court docs to find her in contempt on an aggrieved-Father claim, which, if the attorney is correct in that a judge would rule the intent rather than letter...

He cannot stop you from going back to court to get it clarified, whether he agrees to do that or not.

In any case, file a paper return. You will win this one for 2010, hands down.

 

[TinkerBelleLuvr]

I still would go back to court. Depending on the amount of child support, it can very well be that the INTENT was for the NCP to get the deductions every other year. My suggestion is to minimize the hit every other year. It allows both parties to plan better.

I still would tie in that child support must be up to date in order to be allowed to take the child/children. Clarify what that means also.

In the end, fixing it on the front end is way cheaper than contempt, etc later.