modification

[Ladyback1]

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

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

Divorce decree was finalized 2009.
Divorce decree stipulates that each parent claim 1 child on income taxes each year. (it does not stipulate which child per parent...which I now see as an issue, but at the time, the Ex and I were at least communicating).
I believe, based on what research I have done that I could ask for a modification of the divorce decree/parenting plan to change the tax issue to where I am able to solely claim children. Father does not provide more than 1/2 the kiddos support. ($500 does go far when feeding and clothing two teenage boys who @ 15 and 13 are already 6 ft. tall), they have not even visited him in 2.5 years. Is modifying the parenting plan/divorce decree possible, given the below information:

Ex @ the time of the finalization was living in the same town as the kids and I, and was active in co-parenting the children. In May 2010, he moved 4 hrs away. He had the kids for approx. 5 weeks in summer 2010, and again for 4 days in Dec. 2010. There was an incident in Dec. 2010 and the kids have refused to go to their father's home since. (incident involved father's girlfriend becoming angry and shoving the oldest child.) Since that time, father has shown no interest in communicating w/ children (despite the children calling him, sending holiday cards, etc.)

And the following is for all that will lambast me for not forcing the children to visit their father:

1) yes, I know I can "make" the children visit their father. Since the father has shown no interest in trying to accommodate the children's concerns/issues (the kids are a little afraid of his girlfriend since she lost her cool and shoved the oldest), I do not feel that forcing the matter would be beneficial to anyone.
2) Montana courts do take into consideration the wishes/thoughts of a child age 12 and older on visitation and custody.
3) I have offered to travel to meet w/ father so he can visit the children. I have offered to split costs with him so he could come here to see children. He refuses because the children have requested he not bring his girlfriend.
4) I believe that the children need to have a relationship with their father, and have tried to foster it to the best of my ability, including but not limited to having the kids initiate calls to their father, sending emails and correspondence to their father.
5) I have had the children in counseling regarding the issues regarding the divorce and what followed. The counselor advised that he did not believe forcing the matter would be beneficial to the children (and yes, the counselor spoke w/ father while the children were in counseling...)
6) yes, I have some issues w/ father and some things that he did before, during and after the divorce--not only to me but to the children---including father refusing to reimburse me $25 for medical out of pocket.

I just want the tax issue not to rear it's ugly head for the next 3-5 years.

 

[LdiJ]

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

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

Divorce decree was finalized 2009.
Divorce decree stipulates that each parent claim 1 child on income taxes each year. (it does not stipulate which child per parent...which I now see as an issue, but at the time, the Ex and I were at least communicating).
I believe, based on what research I have done that I could ask for a modification of the divorce decree/parenting plan to change the tax issue to where I am able to solely claim children. Father does not provide more than 1/2 the kiddos support. ($500 does go far when feeding and clothing two teenage boys who @ 15 and 13 are already 6 ft. tall), they have not even visited him in 2.5 years. Is modifying the parenting plan/divorce decree possible, given the below information:

Ex @ the time of the finalization was living in the same town as the kids and I, and was active in co-parenting the children. In May 2010, he moved 4 hrs away. He had the kids for approx. 5 weeks in summer 2010, and again for 4 days in Dec. 2010. There was an incident in Dec. 2010 and the kids have refused to go to their father's home since. (incident involved father's girlfriend becoming angry and shoving the oldest child.) Since that time, father has shown no interest in communicating w/ children (despite the children calling him, sending holiday cards, etc.)

And the following is for all that will lambast me for not forcing the children to visit their father:

1) yes, I know I can "make" the children visit their father. Since the father has shown no interest in trying to accommodate the children's concerns/issues (the kids are a little afraid of his girlfriend since she lost her cool and shoved the oldest), I do not feel that forcing the matter would be beneficial to anyone.
2) Montana courts do take into consideration the wishes/thoughts of a child age 12 and older on visitation and custody.
3) I have offered to travel to meet w/ father so he can visit the children. I have offered to split costs with him so he could come here to see children. He refuses because the children have requested he not bring his girlfriend.
4) I believe that the children need to have a relationship with their father, and have tried to foster it to the best of my ability, including but not limited to having the kids initiate calls to their father, sending emails and correspondence to their father.
5) I have had the children in counseling regarding the issues regarding the divorce and what followed. The counselor advised that he did not believe forcing the matter would be beneficial to the children (and yes, the counselor spoke w/ father while the children were in counseling...)
6) yes, I have some issues w/ father and some things that he did before, during and after the divorce--not only to me but to the children---including father refusing to reimburse me $25 for medical out of pocket.

I just want the tax issue not to rear it's ugly head for the next 3-5 years.

I would get a brief consult with a local attorney. Some states use the tax exemption to help encourage non custodial parents to pay their child support. You would want to make sure that your state did not have that prevailing attitude before you attempt any changes.

However, if you raise the issue of the tax exemption or a child support modification I can almost guarantee that dad will not only try to have you held in contempt for the fact that the children are not visiting, but will also make an attempt to change custody based on that fact as well. So discuss that issue with a local attorney as well. You don't want to poke a sleeping bear.

 

[OHRoadwarrior]

You can certainly state those reasons. The compelling reason to the court would likely accept would be that according to IRS rules, even though the court has made the deduction available to him, IRS reg's prohibit him from legally exercising it. You will need to prove you do qualify to exercise it for both children under IRS rules.

 

[Ladyback1]

You don't want to poke a sleeping bear.

especially if the sleeping bear is off his meds! (abusive bi-polar and I had quite enough of that in the 15 years)

And yes, that is one reason I have not done anything as far as modification of anything.

 

[LdiJ]

You can certainly state those reasons. The compelling reason to the court would likely accept would be that according to IRS rules, even though the court has made the deduction available to him, IRS reg's prohibit him from legally exercising it. You will need to prove you do qualify to exercise it for both children under IRS rules.

It has not been my experience that state courts care about that argument. If you are able to convince a judge of that, then the judge just orders the custodial parent to sign form 8332 releasing the exemption to the non-custodial parent.

 

[Just Blue]

especially if the sleeping bear is off his meds! (abusive bi-polar and I had quite enough of that in the 15 years)

And yes, that is one reason I have not done anything as far as modification of anything.

https://forum.freeadvice.com/child-custody-visitation-37/what-do-597301.html

 

[Ladyback1]

https://forum.freeadvice.com/child-custody-visitation-37/what-do-597301.html

as I have explained before....sometimes the angry side of me thinks too much, and I need an objective view/opinion.

I'm frustrated with the Ex. I just want him to step up, and if he can't step up---then he doesn't deserve the "perks" (tax credit).

I probably won't file for modification, simply because it's not worth stirring the pot. Just like the $25 wasn't.

 

[BigMouthWino]

as I have explained before....sometimes the angry side of me thinks too much, and I need an objective view/opinion.

I'm frustrated with the Ex. I just want him to step up, and if he can't step up---then he doesn't deserve the "perks" (tax credit).

I probably won't file for modification, simply because it's not worth stirring the pot. Just like the $25 wasn't.

Are your children off of public assistance? Are you working to support them? Full time?

 

[stealth2]

Eh... I've been in a similar situation. Not worth the hassle. But then... I wouldn't whine about $25, either.

 

[Ladyback1]

Are your children off of public assistance? Are you working to support them? Full time?

yep, yep and yep!

haven't a clue if their father is working--last I heard from the grapevine he was unemployed.

 

[latigo]

. . . . . Some states use the tax exemption to help encourage non custodial parents to pay their child support. . . . .

What a bunch of phony baloney! Just where the blazes did you come up with the stupid, idiotic, haywire notion that “some states use the exemption” as leverage against deadbeat fathers?

States do not have the right to preempt federal law. And the federal laws in this instance provide that the divorced or separate parent with whom the dependent child(ren) reside for more that six months of the year IS ENTITLED TO CLAIM THE TAX EXEMPTION! The question of who contributes what and how much to their support is totally ignored by IRS.

And irrespective of how a divorce decree treats the tax exemption it is meaningless as for as IRS is concerned, UNLESS the decree directs the custodial parent to execute IRS Form 8332 Release of Claim to Exemption for Child of Divorced or Separate Parents. And the order is complied with.

Because in spite of the decree it is only when Form 8332 is signed and delivered to the non-custodial parent and attached to that parent’s tax return that the non-custodial parent is legally entitled to claim the dependency exemption.

Plus, it has to be done each year!

Now, if the Montana divorce decree does order the OP to prepare and submit Form 8332 allowing the non-custodial father to claim the dependency exemption for one child for specific years and she fails to do so, the father can move to have her held in contempt for disobedience of the order.

But without that form being attached to his 1040 he is not legally entitled to claim the exemption. And IRS will not accept a copy of the decree in lieu thereof.
___________

Regarding the remainder of your equally absurd “poking bear” effort, on the strength of what professional credentials do you have the gall to personally ‘GUARANTEE” ” to the OP what will occur in court if she elects to revisit the decree?

I've spent 40 plus years as a trial lawyer and I can't predict anything more than that the judge will recess for lunch.

 

[latigo]

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

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

Divorce decree was finalized 2009.
Divorce decree stipulates that each parent claim 1 child on income taxes each year. (it does not stipulate which child per parent...which I now see as an issue, but at the time, the Ex and I were at least communicating).
I believe, based on what research I have done that I could ask for a modification of the divorce decree/parenting plan to change the tax issue to where I am able to solely claim children. Father does not provide more than 1/2 the kiddos support. ($500 does go far when feeding and clothing two teenage boys who @ 15 and 13 are already 6 ft. tall), they have not even visited him in 2.5 years. Is modifying the parenting plan/divorce decree possible, given the below information:

Ex @ the time of the finalization was living in the same town as the kids and I, and was active in co-parenting the children. In May 2010, he moved 4 hrs away. He had the kids for approx. 5 weeks in summer 2010, and again for 4 days in Dec. 2010. There was an incident in Dec. 2010 and the kids have refused to go to their father's home since. (incident involved father's girlfriend becoming angry and shoving the oldest child.) Since that time, father has shown no interest in communicating w/ children (despite the children calling him, sending holiday cards, etc.)

And the following is for all that will lambast me for not forcing the children to visit their father:

1) yes, I know I can "make" the children visit their father. Since the father has shown no interest in trying to accommodate the children's concerns/issues (the kids are a little afraid of his girlfriend since she lost her cool and shoved the oldest), I do not feel that forcing the matter would be beneficial to anyone.
2) Montana courts do take into consideration the wishes/thoughts of a child age 12 and older on visitation and custody.
3) I have offered to travel to meet w/ father so he can visit the children. I have offered to split costs with him so he could come here to see children. He refuses because the children have requested he not bring his girlfriend.
4) I believe that the children need to have a relationship with their father, and have tried to foster it to the best of my ability, including but not limited to having the kids initiate calls to their father, sending emails and correspondence to their father.
5) I have had the children in counseling regarding the issues regarding the divorce and what followed. The counselor advised that he did not believe forcing the matter would be beneficial to the children (and yes, the counselor spoke w/ father while the children were in counseling...)
6) yes, I have some issues w/ father and some things that he did before, during and after the divorce--not only to me but to the children---including father refusing to reimburse me $25 for medical out of pocket.

I just want the tax issue not to rear it's ugly head for the next 3-5 years.

Lady, have you ever in the past been ordered by the Montana court to prepare and submit to you ex IRS Form 8332?

I'm guessing that you haven't and if correct, then you should claim both children for dependency exemptions on your next and succeeding Form 1040s.

Seriously, just do that. And ignore the divorce decree. Because if your ex doesn't have that form signed by you and attached to his return, he is not entitled to claim either children for dependency exemption purposes.

What will likely happen (but only if he makes a duplicate claim) is that you may be called in for an informal conference with and IRS agent. Once you have proven that you are the custodial parent and that the children reside with you more than 6 months of the taxable years, your claim will be approved and his denied.

 

[BigMouthWino]

yep, yep and yep!

haven't a clue if their father is working--last I heard from the grapevine he was unemployed.

Yet you admit he is current in his monthly support payments. It sounds as though you have a serious axe to grind with this gentleman.

My advice: Get in shape and work on a new relationship. Forget about this guy. He's done with you.

 

[Ladyback1]

Yet you admit he is current in his monthly support payments. It sounds as though you have a serious axe to grind with this gentleman.

My advice: Get in shape and work on a new relationship. Forget about this guy. He's done with you.

Oh my....I do not want him back.
It's anger and frustration. Most of the time, I am not not angry or frustrated. I have the children and the dog---and just for your info have been in a relationship for the last 3 years. A wonderful man who treats my children as his own. And no, the kids have never called him Dad or Daddy. They only have one Dad, even if he doesn't act like one!

*sigh* I'll get out of this funk in a few days and not worry it.

 

[LdiJ]

Lady, have you ever in the past been ordered by the Montana court to prepare and submit to you ex IRS Form 8332?

I'm guessing that you haven't and if correct, then you should claim both children for dependency exemptions on your next and succeeding Form 1040s.

Seriously, just do that. And ignore the divorce decree. Because if your ex doesn't have that form signed by you and attached to his return, he is not entitled to claim either children for dependency exemption purposes.

What will likely happen (but only if he makes a duplicate claim) is that you may be called in for an informal conference with and IRS agent. Once you have proven that you are the custodial parent and that the children reside with you more than 6 months of the taxable years, your claim will be approved and his denied.

Yep, you are absolutely correct as far as the IRS is concerned. What you are ignoring however is what the state court is likely to do to mom when dad files for contempt for mom claiming the exemption for both children. I have actually testified in court on behalf of two different custodial parents who did exactly as you suggested, and both of them got their butts handed to them in a sling by the state court...despite the fact that I demonstrated unequivacably what you outlined. One custodial parent was ordered to amend their returns to remove the child and forced to sign form 8332 in court for all future years (and yes, if you will look at form 8332 you will see that it can be signed for either just one year, or multiple years) and the other was ordered to pay the non-custodial parent the amount equivalent to what the non-custodial parent would have received had they been able to claim the exemption.

I also listened to the judge say in both cases, in open court, that it was the state's policy to encourage the parent to pay their child support by giving them the exemption. In that particular state (Indiana) the guidelines do state that the ncp is not entitled to the exemption if they are not current with child support.

So, following your advise would likely end with the OP in a world of hurt since it does appear that the ncp IS paying their child support.

The IRS would actually like to completely do away with form 8332 which would force the states to adjust their child support guidelines to take the tax exemptions into consideration if they still feel that is appropriate. However so far they do not have the support of Congress to do so.