Who claims my Daughter?

[goliath7]

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

I was recently divorced in September 2011. Prior to that date, My ex and I shared time with our daughter. After the divorce, I was given every Tuesday and every other weekend with my daughter. Given that, I had my daughter with me for 183 nights in 2011. There is not anything in our divorce decree that mentions who gets to claim our daughter on our taxes. My Ex's attorney sent me a nice letter stating that I would be taken back to court if I claim my daughter as it is against IRS guidelines for me to do so. Per the advice of my attorney, I kept a log of which nights my daughter was with me and when she was with her mother. I also kept receipts of anything I bought for my daughter's needs like clothing, shoes,..etc. I also paid $3000 in day care costs for my daughter in 2011. So...my questions are

Who gets to claim my daughter?

If I am audited by the IRS, what do I need to show as proof to claim my daughter?

If my Ex actually takes me back to court, what can I expect in that situation?

I understand that in future years I will not be able to claim my daughter as I will not have more night with her than her Mom...but I think I should be able to claim her this year.

Thanks for any help/advice you can provide!

 

[davew128]

My Ex's attorney sent me a nice letter stating that I would be taken back to court if I claim my daughter as it is against IRS guidelines for me to do so.

Respond to the attorney with a request of a citation for the law they are claiming you violated along with a request for the name of the cereal company they got their law degree from.

 

[ShyCat]

How does "every Tuesday and every other weekend" add up to 183 nights?

 

[LdiJ]

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

I was recently divorced in September 2010. Prior to that date, My ex and I shared time with our daughter. After the divorce, I was given every Tuesday and every other weekend with my daughter. Given that, I had my daughter with me for 183 nights in 2011. There is not anything in our divorce decree that mentions who gets to claim our daughter on our taxes. My Ex's attorney sent me a nice letter stating that I would be taken back to court if I claim my daughter as it is against IRS guidelines for me to do so. Per the advice of my attorney, I kept a log of which nights my daughter was with me and when she was with her mother. I also kept receipts of anything I bought for my daughter's needs like clothing, shoes,..etc. I also paid $3000 in day care costs for my daughter in 2011. So...my questions are

Who gets to claim my daughter?

If I am audited by the IRS, what do I need to show as proof to claim my daughter?

If my Ex actually takes me back to court, what can I expect in that situation?

I understand that in future years I will not be able to claim my daughter as I will not have more night with her than her Mom...but I think I should be able to claim her this year.

Thanks for any help/advice you can provide!

It would go by who had the most overnights with the child for the year...and if the overnights were equal (hard to do) then it would go by the parent who had the higher AGI.

I see a potential problem in your calculation of overnights. If you had 50/50 parenting time for the entire year, you could potentially have had your daughter 183 nights. However, after September 2010 you stated that you had every other weekend and every Tuesday. Therefore you should double check your calculations.

 

[goliath7]

It would go by who had the most overnights with the child for the year...and if the overnights were equal (hard to do) then it would go by the parent who had the higher AGI.

I see a potential problem in your calculation of overnights. If you had 50/50 parenting time for the entire year, you could potentially have had your daughter 183 nights. However, after September 2010 you stated that you had every other weekend and every Tuesday. Therefore you should double check your calculations.

I forgot to mention that it was Late September when it was final....my ex did not hold me to the visitation schedule until mid October. Then there were the holidays in which I got my daughter the week she was out of school for Thanksgiving and I got her Christmas Eve through the New Year. Believe it or not, it added up to 183 days.

 

[davew128]

In addition ask the attorney if he or she has learned how to use a calculator.

 

[LdiJ]

I forgot to mention that it was Late September when it was final....my ex did not hold me to the visitation schedule until mid October. Then there were the holidays in which I got my daughter the week she was out of school for Thanksgiving and I got her Christmas Eve through the New Year. Believe it or not, it added up to 183 days.

Even calculating it extremely generously I cannot come up with more than 177. I think that you might be counting a weekend or two as both a holiday day and a weekend day, which would throw you off, or Tuesdays as both a holiday day or weekday...which would also throw you off.

If you had 50/50 prior to October 15th, then the only way that you could have reached 183 overnights, meaning more overnights than mom for the year, is if you had the child more overnights between October 15th and December 31st, and you absolutely did not.

 

[TinkerBelleLuvr]

If both parents lived in the same house until the divorce or shortly before, it IS possible for BOTH parents to have had more than half the year. In that case, it then goes to IRS tie breaker rules unless there was something specified in the divorce papers.

 

[goliath7]

Even calculating it extremely generously I cannot come up with more than 177. I think that you might be counting a weekend or two as both a holiday day and a weekend day, which would throw you off, or Tuesdays as both a holiday day or weekday...which would also throw you off.

If you had 50/50 prior to October 15th, then the only way that you could have reached 183 overnights, meaning more overnights than mom for the year, is if you had the child more overnights between October 15th and December 31st, and you absolutely did not.

Ok this is what I got.....I was ahead early on in the year...I had my daughter every Tue and Thur plus every other Fri, Sat, Sun night prior to the week of Oct 17th:

January 16 nights
Feb 14 nights---I had the middle 2 weekends back to back due to work
Mar 17 nights
April 17 nights
May 16 nights
June 15 nights
July 15 nights
Aug 15 nights
Sep 16 nights
Oct 15 nights
Nov 14 nights
Dec 13 nights

Total of 183 nights with my daughter

 

[ecmst12]

Did you mean to say you divorced in September 2011?

 

[LdiJ]

Ok this is what I got.....I was ahead early on in the year...I had my daughter every Tue and Thur plus every other Fri, Sat, Sun night prior to the week of Oct 17th:

January 16 nights
Feb 14 nights---I had the middle 2 weekends back to back due to work
Mar 17 nights
April 17 nights
May 16 nights
June 15 nights
July 15 nights
Aug 15 nights
Sep 16 nights
Oct 15 nights
Nov 14 nights
Dec 13 nights

Total of 183 nights with my daughter

How did you get 15, 14, and 13 overnights in Oct, Nov, and December, on the new schedule? Even if you did have the holidays? Again, I think you are double counting some holiday and weekend overnights.

 

[KMPOLLARD]

I have experienced this before. It comes down to what the court order states. If she has primary custody of the child, more days/nights than you do in a week, than you can't file her. It doesn't matter what she might of stayed or didn't, it will all come down to what the court order says. If you both file her, the IRS will ask for the court order for proof of whom may file her. My ex attempted to file her on several occassions and that is what the IRS has asked for each time.

 

[davew128]

I have experienced this before. It comes down to what the court order states. If she has primary custody of the child, more days/nights than you do in a week, than you can't file her. It doesn't matter what she might of stayed or didn't, it will all come down to what the court order says. If you both file her, the IRS will ask for the court order for proof of whom may file her. My ex attempted to file her on several occassions and that is what the IRS has asked for each time.

Other than the fact that you're wrong, you're right on the money.

Since you decided to hijack the thread, you should know that the IRS doesn't care about a court order and won't honor it. For IRS purposes, it really DOES matter about overnight stays.

More to the point, had you bothered to actually READ the OP's first post (at the top of the screen, I know its easy to miss) you would have discovered that the divorce decree is SILENT on the matter.

Any questions? No? Good. Now go away.

 

[KMPOLLARD]

As stated before, I have encountered this twice and have received a letter request a court order to whom has primary custody. I was just sharing my experience, not trying to act like I know everything or come across as an ass. Also, the person does state he was given Tues and every other weekend. I was just wondering if this was per a court order or a mutual agreement. You can have a divorce decree and a separate custody order.

 

[davew128]

You can have a divorce decree and a separate custody order.

None of which is relevant to actual number of overnights.