Claiming a Child on a Tax Return and Custody

[my bear]

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

I am not sure if this is the appropriate place to post this question, so if I have erred I do apologize.

My ex and I are in the middle of a custody dispute regarding our 5-year old daughter. He informed me yesterday that he plans on filing an OSC, asking the Court to grant him the right to claim our child each year on his tax return.

Currently, I pay all support for our daughter and have primary custody. I have attempted to read the IRS Tax Code with regards to this situation, but it is rather confusing. My question is, IF the court awards me primary custody would he still possibly be awarded the right to declare our daughter on his income taxes each year?What is the name of your state (only U.S. law)?

 

[Isis1]

according to what i have learned on this site, is that the custodial parent has the federal legal right to claim the children in that household EVERY year.

now, what can happen in family court is that MOM and DAD claim the children every other year. such as an example, MOM claims all the even years, DAD claims all the odd years.

if there are two children, then MOM and DAD split claiming the kids. one kid per parent.

if there are three children, the MOM claims one every year, DAD claims one every year, and the third child is switched back and forth every other year.

and so on and so on.....

i have seen where the NCP claims the kids all the years in the event the CP does not work.

 

[tuffbrk]

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

I am not sure if this is the appropriate place to post this question, so if I have erred I do apologize.

My ex and I are in the middle of a custody dispute regarding our 5-year old daughter. He informed me yesterday that he plans on filing an OSC, asking the Court to grant him the right to claim our child each year on his tax return.

Currently, I pay all support for our daughter and have primary custody. I have attempted to read the IRS Tax Code with regards to this situation, but it is rather confusing. My question is, IF the court awards me primary custody would he still possibly be awarded the right to declare our daughter on his income taxes each year?What is the name of your state (only U.S. law)?

You pay ALL support? Dad does not pay support, medical, etc? If so, then there would be no reason for him to be granted the right to claim the child.

 

[rdkkks]

I don't know about in California, but in Oregon the court can't order the NCP to be able to claim the kids. According to what I've read, whoever has the kids more than 50% of the time (regardless of child support) is who claims them. My ex and I negotiated to where he can claim our kids every other year if his support is paid in full as of Dec 31st. But the court couldn't have ordered that. I could *choose* to let him to that.

 

[StampGirl]

I don't know about in California, but in Oregon the court can't order the NCP to be able to claim the kids. According to what I've read, whoever has the kids more than 50% of the time (regardless of child support) is who claims them. My ex and I negotiated to where he can claim our kids every other year if his support is paid in full as of Dec 31st. But the court couldn't have ordered that. I could *choose* to let him to that.

That is why you need to *hush*.

According to the IRS, whoever has the child more (physical custody) is entitled to the tax deduction every year. HOWEVER, a court judge can order the NCP to have the deduction every year. In that case, the CP has to sign the IRS form (cant remember the # off the top of my head) to release the deductions to the NCP. I sign that form EVERY YEAR. Yep, I have all three kids 80% of the time and my Ex gets all three tax deductions.

I can modify this of course, but haven't done so as of right now.

If you claim the child and your court order states that the NCP is to claim them, the NCP can take you to court for contempt of court per your order.

 

[tuffbrk]

If a state grants an NCP exemption status it is typically only because of financial considerations between the NCP and the CP. If there is no financial consideration, there is very little reason for a state court to grant an NCP the right to the exemption.

As StampGirl notes, IRS rulings require the CP to sign allowing the NCP to claim the child. This is because Federal law (IRS) trumps State law and family court decisions.

 

[sometwo]

According to the IRS, whoever has the child more (physical custody) is entitled to the tax deduction every year. HOWEVER, a court judge can order the NCP to have the deduction every year. In that case, the CP has to sign the IRS form (cant remember the # off the top of my head) to release the deductions to the NCP. I sign that form EVERY YEAR. Yep, I have all three kids 80% of the time and my Ex gets all three tax deductions.

And if you both try to claim the child and things get messed up , well then it will take a while to get straightened out and get refunds back. So if your having problems about this when its time to file taxes be prepared to wait a while for your refund.

We do ours online and if Im not mistaken , if the child has already been claimed the system will kick the tax refund back out and wont let it be filed until its fixed. I would think that would be an easy way to know if the child/ren had already been claimed or not.

 

[StampGirl]

As StampGirl notes, IRS rulings require the CP to sign allowing the NCP to claim the child. This is because Federal law (IRS) trumps State law and family court decisions.

Just wanted to point out that if the court order states the NCP is allowed to claim the deductions and the CP fails to follow through with this (by either claiming the child themselves or not signing the paperwork necessary for NCP to claim them), then the NCP has grounds to file for contempt of court. AND they will WIN.

The original reason behind my ex getting the tax deductions was that at the time we divorced, I was in school and not working. Now that I am, I can modify the agreement. I am choosing to keep that in my back pocket for now. My ex knows that I am very eligible to claim the kids or we swap them EOY.

 

[tuffbrk]

Oh absolutely the NCP can file contempt of court. I was just trying to clarify that exemptions - as governed by family court - are about financial considerations. It wouldn't make sense in her case for a court to grant the NCP the exemption. Whereas you had little to no income so you didn't need the exemption and it doesn't make sense that no one claim the exemption.

Whereas - as governed by federal law - it is about the primary domicile as it is presumed the party maintaining the primary domicile is absorbing more of the expenses.

I happen to think it's a reasonable method for determining exemptions. I just also think it should be easier for the NCP to prove their right to an exemption granted by family court if the CP is tough to deal with...

 

[SopranoKris]

Just to chime in (even though I'm in IL): This was one of the concessions my ex & I agreed upon in our divorce. I claim the exemption every even numbered year and he gets it every odd year. I think that it's very fair, considering we split our visitation time 50/50.

My lawyer never told me about having to complete that IRS form, though. Glad to know I need to look into this so I don't have a shock at tax time. Thanks for the info

 

[TinkerBelleLuvr]

And if you both try to claim the child and things get messed up , well then it will take a while to get straightened out and get refunds back. So if your having problems about this when its time to file taxes be prepared to wait a while for your refund.

We do ours online and if Im not mistaken , if the child has already been claimed the system will kick the tax refund back out and wont let it be filed until its fixed. I would think that would be an easy way to know if the child/ren had already been claimed or not.

Not accurate.

The IRS will allow only one party to file electronically with the social security number. If a second party files, then it is a paper return. They will issue the refunds accordingly; then afterwards, the IRS will make the parties prove WHO should get the exemption, as in custodial parent will trump NCP. If NCP should have gotten the deduction, then, they get to go back to court to file for contempt of court.

 

[sometwo]

The IRS will allow only one party to file electronically with the social security number

exackly so it wont let them file. Therefore could be an indication someone else has already filed for that child.

 

[TinkerBelleLuvr]

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

I am not sure if this is the appropriate place to post this question, so if I have erred I do apologize.

My ex and I are in the middle of a custody dispute regarding our 5-year old daughter. He informed me yesterday that he plans on filing an OSC, asking the Court to grant him the right to claim our child each year on his tax return.

Currently, I pay all support for our daughter and have primary custody. I have attempted to read the IRS Tax Code with regards to this situation, but it is rather confusing. My question is, IF the court awards me primary custody would he still possibly be awarded the right to declare our daughter on his income taxes each year?What is the name of your state (only U.S. law)?

The custodial parent normally can get the deduction, unless there are extenuating circumstances. Many of the child support calculations include that justification.

Now, in the case of my boys, I split the children with my X since he was reliable with support (late once in 14 years - and we both knew it was going to be late for a couple months.) My daughter's X will NEVER see the deduction, and he knows why (huge arrearage.)