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Joint custody question

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NikkiV

Junior Member
What is the name of your state (only U.S. law)? Ohio
I divorced my ex husband in 2001. We originally had joint custody agreement with me being the custodial parent and my ex husband the non custodial parent but we both shared custody of our son approximately 50% each. 3 years into the agreement my ex husband moved out of state (Il). He did not notify the courts at the time (I'm not even sure that he needed to but I wanted to include pertinent facts) but he did come back to OH 1-2 times (weekends only) to see our son for 5-6 years and then the visits moved to once a month (weekends only). During the entire time that my ex husband has lived in another state he has claimed my son for tax purposes. He does pay child support but when we originally signed our custody agreement my son was living with him half the time. My attorney said that he had the right to claim him.

Now that my ex husband has been gone for years does he still have the legal right to claim my son as a dependent on his taxes? Any help would be greatly appreciated.

Thank you
 


I'mTheFather

Senior Member
I will assume that the original orders gave him the tax deduction since your attorney said he has the right to claim him. You ought to return to court for a child support review, time-share change, and possibly a change to the exemption.
 

LdiJ

Senior Member
What is the name of your state (only U.S. law)? Ohio
I divorced my ex husband in 2001. We originally had joint custody agreement with me being the custodial parent and my ex husband the non custodial parent but we both shared custody of our son approximately 50% each. 3 years into the agreement my ex husband moved out of state (Il). He did not notify the courts at the time (I'm not even sure that he needed to but I wanted to include pertinent facts) but he did come back to OH 1-2 times (weekends only) to see our son for 5-6 years and then the visits moved to once a month (weekends only). During the entire time that my ex husband has lived in another state he has claimed my son for tax purposes. He does pay child support but when we originally signed our custody agreement my son was living with him half the time. My attorney said that he had the right to claim him.

Now that my ex husband has been gone for years does he still have the legal right to claim my son as a dependent on his taxes? Any help would be greatly appreciated.

Thank you
Does the court order give him that right? I have a different answer if it does or doesn't so please answer that question.
 

LdiJ

Senior Member
Yes, it was part of the court order.
Ok, then its time to go back to court to get that changed.

The IRS would not allow him the tax exemption if you filed and took it yourself, because he does not meet the criteria to claim the child unless you voluntarily release the exemption to him by giving him a signed form 8332. State courts cannot overrule the IRS. However, because your court orders give him the exemption you could run afoul of the state courts by taking the exemption yourself and not cooperating with providing him the signed form 8332. Therefore the state has the option to find you in contempt and fine you and/or order you to pay him the refund he didn't get because you claimed the child.

Now, its not guaranteed that you would run afoul of the state courts because he is not taking on his responsibilities for the 50/50 timeshare which is what I suspect caused him to get the right to claim the child every year, but its still a risk for you.

Now, on a different note: Are you married or single? If you are single there are tax options open to you that you might not realize. Your ex is absolutely not entitled to head of household status, to take daycare credits, or to take Earned Income Credit...nor can the state court grant him those rights because the child does not primarily live with him. The IRS has a provision that allows him to claim the exemption and the child tax credit, but allows you to claim head of household status, daycare credits, and earned income credit. The state court CANNOT ding you for taking those tax attributes. The IRS WILL ding him if he does. Therefore this is not something that the state courts can control in any way, shape or form.

So, get yourself to a tax professional to see if you should have been claiming some of those attributes. (assuming that you are single) You can amend 2011, 2012, 2013 and take those attributes on 2014. The option to amend 2011 will expire on April 15th of this year.
 

NikkiV

Junior Member
Ok, then its time to go back to court to get that changed.

The IRS would not allow him the tax exemption if you filed and took it yourself, because he does not meet the criteria to claim the child unless you voluntarily release the exemption to him by giving him a signed form 8332. State courts cannot overrule the IRS. However, because your court orders give him the exemption you could run afoul of the state courts by taking the exemption yourself and not cooperating with providing him the signed form 8332. Therefore the state has the option to find you in contempt and fine you and/or order you to pay him the refund he didn't get because you claimed the child.

Now, its not guaranteed that you would run afoul of the state courts because he is not taking on his responsibilities for the 50/50 timeshare which is what I suspect caused him to get the right to claim the child every year, but its still a risk for you.

Now, on a different note: Are you married or single? If you are single there are tax options open to you that you might not realize. Your ex is absolutely not entitled to head of household status, to take daycare credits, or to take Earned Income Credit...nor can the state court grant him those rights because the child does not primarily live with him. The IRS has a provision that allows him to claim the exemption and the child tax credit, but allows you to claim head of household status, daycare credits, and earned income credit. The state court CANNOT ding you for taking those tax attributes. The IRS WILL ding him if he does. Therefore this is not something that the state courts can control in any way, shape or form.

So, get yourself to a tax professional to see if you should have been claiming some of those attributes. (assuming that you are single) You can amend 2011, 2012, 2013 and take those attributes on 2014. The option to amend 2011 will expire on April 15th of this year.
Thank you very much for your very informative response. I am remarried and have been for quite awhile now. I do not plan on trying to amend any past taxes but was curious what my rights were moving forward. Your information has been very helpful to me. Thank you!
 

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