Ex is claiming kids on her taxes; decree says otherwise

[LdiJ]

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'!"

Do you have any idea at all how much money she makes? Or if she is married, how much money they make jointly? Because if you could give us that info, several of us here may be able to give you some good suggestions for how to make the idea more attractive to her.

 

[majomom1]

Ldi & Ginny,

What if the court order was written: Dad claims the children in odd years. Mom claims the children in even years. Does that take away the "condition"?

I am also curious - OP, is there anything that states you have to be current on CS before you can claim the kids?

I am also wondering if Mom won't claim that she did not have Dad's info and therefore went ahead and claimed them. So there is a chance that she could wiggle out of a contempt charge.

 

[LdiJ]

Ldi & Ginny,

What if the court order was written: Dad claims the children in odd years. Mom claims the children in even years. Does that take away the "condition"?

I am also curious - OP, is there anything that states you have to be current on CS before you can claim the kids?

I am also wondering if Mom won't claim that she did not have Dad's info and therefore went ahead and claimed them. So there is a chance that she could wiggle out of a contempt charge.

Yes, stating odd and even years could remove the condition. However, all of the other aspects must be met as well. The agreement must also have the CP's signature. Therefore something ordered by a judge, and not agreed upon by the parties would also not work. If it states anything about being current with child support, that would also be a condition. Honestly, not many well done agreements, from a family law perspective, would pass muster as a substitute for a form 8332. Well done agreements have conditions.

I agree that there is a chance that she could wiggle out of a contempt charge, particularly if their incomes are not too far apart, and particularly if dad did not volunteer information regarding his agi to mom.

 

[Ohiogal]

Yes, stating odd and even years could remove the condition. However, all of the other aspects must be met as well. The agreement must also have the CP's signature. Therefore something ordered by a judge, and not agreed upon by the parties would also not work. If it states anything about being current with child support, that would also be a condition. Honestly, not many well done agreements, from a family law perspective, would pass muster as a substitute for a form 8332. Well done agreements have conditions.I agree that there is a chance that she could wiggle out of a contempt charge, particularly if their incomes are not too far apart, and particularly if dad did not volunteer information regarding his agi to mom.

WRONG! Not all well done AGREEMENTS have conditions.

 

[Farfalla]

The every other year thing requires zero cooperation if (IF) the IRS Form 8332 are signed in advance. Or if you get every year.... have her sign the forms in advance giving you the right to every year.

 

[Farfalla]

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?

IRS Form 8332 - Rlease of Claim to EXecmption for Child od Divrced or Separate Parents.

Here's the form... http://www.irs.gov/pub/irs-pdf/f8332.pdf

It can be signed in advance. For example the wording on the one in front of me right now says: "I agree not to claim an execption for Michel xxxxx for the tax years(s) 1999, 2001, 2003, 2005" and its signed by my ex husband. My exhusband has a similar form from me for the even years. When I did my taxes I just sent a copy of the signed form in every year that I claimed Michel. Ex did that on alternative years.

 

[majomom1]

The every other year thing requires zero cooperation if (IF) the IRS Form 8332 are signed in advance. Or if you get every year.... have her sign the forms in advance giving you the right to every year.

No. That is not correct.

If the court order states that Dad gets the exemption in odd number years, with no other conditions... then Form 8332 is not required.

If the exemption is dependent on CS being current, then form 8332 is required, and no one should sign it in advance.

 

[LdiJ]

WRONG! Not all well done AGREEMENTS have conditions.

I think perhaps that we may be disagreeing on what constitutes a "condition". Would you not normally feel that a child support agreement that states that someone must be current with their child support, in order to take the exemption for the children, would be well done?

That's a classic "condition" in the eyes of the IRS.

 

[LdiJ]

The every other year thing requires zero cooperation if (IF) the IRS Form 8332 are signed in advance. Or if you get every year.... have her sign the forms in advance giving you the right to every year.

1) She isn't going to do that voluntarily.

2) A judge isn't going to force her to do that if the condition of the agreement is that the person making the most money gets the exemption.

3) I would advise that anyone fight that particular "order" tooth and nail.

There is a classic bit of federal tax case law out there that explains WHY you don't do that.

Dad was ordered to pay child support. Mom had primary custody. The judge ordered that dad got the tax exemption and mom signed a form 8332 for all future years.

Dad immediately quit his job and disappeared. Mom eventually went back to court and got sole custody, and the judge ordered that she got the tax exemption. Every method was adopted to try to collect CS from dad, but no one was ever successful.

Dad however, kept claiming the child and the IRS (and later a federal tax court) ruled in his favor. Why? Because mom signed the danged for 8332 for all future years. The federal judge stated in open court that it was grossly unfair, but that he had no choice but to rule in dad's favor, because there is no methodology to rescind a form 8332.

So, I will tell anyone who is contemplating signing it for more than one single year at a time, NOT to do that.

 

[Ohiogal]

I think perhaps that we may be disagreeing on what constitutes a "condition". Would you not normally feel that a child support agreement that states that someone must be current with their child support, in order to take the exemption for the children, would be well done?

That's a classic "condition" in the eyes of the IRS.

And NOT all well written agreements have that phrase. A well written agreement is one that BOTH parents are equally happy and equally unhappy with and yet still sign and submit to the courts. Many do not have that phrase. It depends on the situation as to whether or not that "condition" would be fair to have in an agreement so no I would NOT feel that that agreement would be well done.

 

[LdiJ]

No. That is not correct.

If the court order states that Dad gets the exemption in odd number years, with no other conditions... then Form 8332 is not required.

If the exemption is dependent on CS being current, then form 8332 is required, and no one should sign it in advance.

That isn't accurate. Yes, that means that there is no "condition", but if its a court order, rather than an agreed order, then it would not have the CP's signature, therefore it still wouldn't be an adequate substitute for a form 8332. There are 3 elements that have to be met.

-no conditions
-CP's signature
-specific as to when the ncp gets the exemption

Not many orders meet all three elements.

 

[majomom1]

That isn't accurate. Yes, that means that there is no "condition", but if its a court order, rather than an agreed order, then it would not have the CP's signature, therefore it still wouldn't be an adequate substitute for a form 8332. There are 3 elements that have to be met.

-no conditions
-CP's signature
-specific as to when the ncp gets the exemption

Not many orders meet all three elements.

I get what you are saying. In my scenario, I meant that it had all those elements. Like you stated, I cannot see anyone signing the 8332 in advance.

You gave a much better scenario as to why someone should not do that, which is the point I was trying to get across.