dependants for tax purposes

[Fatherof4]

What is the name of your state? MS

In my divorce decree it states I can claim my son for taxes on even years and my x on odd years and she has primary legal custody ( shared joint). My x hasn't seen my son in more than 18 months or payed any of his support. I have now have temp. care, custody, and control of him. My question is can I claim him on my taxes this year even though the original decree says she has odd years?

I originally put this on the tax forum but didn't understand the answer and not many people go on there I guess.

Could someone here help me?

 

[hjallge]

The only thing that can change an existing court order is a new one. You would have to modify the existing order to ensure that you cannot be held in contempt.

 

[Fatherof4]

I'm not sure I understand. I have an new order (the temp custody order) but it does not say anything about taxes. I will get it put in the permanent one but until then if I claim him this year I can be held in contempt?

If I claim him and she claims him what what can the government do?

 

[WyattJ]

The government in my case really hasn't done anything but sent a paper to my home stating that the same SS# was used. You can read my post "TAXES".

In many cases of taxes since there is not nothing right now stating that you can claim I wouldn't so you can not be in contempt. If anything have her sign a form giving you permission to file.

 

[TNBSMommy]

My ex and I both claimed the children one year, and we both ended up having to send in what proof we had that we had the right to claim them. I don't know what he sent in, the only thing I knew of was his food stamp case info, but I sent in copies of birth certificates, SS cards, med. records, school records, notarized letter from my BB sitter, copies of court papers showing what he owed me in CS. I believe at the time, our papers said he got them during the week, and I had them on the weekends, but we actually did it the opposite. I received a letter thanking me saying no changes would be made and his wife said they never got anything back from them, I do know that he and his wife did not receive hardly any of their taxes that year, between my CS and the IRS. When I called the IRS after receiving the packet telling me what to send, they told me it was more who actually physically supported the children over the course of the year than what the court papers said. And that even though they said he was to have them more, if I could prove I actually did then I would be ok. And it worked.

I want to say it was close to two years after we both claimed them that I got the papers about it.

Good luck!

 

[Inquiry123]

Hope this helps.

If I understand your post correctly (child lives with you exclusively, you provide all support) it appears that the IRS is on your side regardless of the language/terms of your court order. Different conditions must be met in order for you or your spouse to claim the child as a dependent (and these conditions vary for different tax deductions and credits.)

Check out this link, http://www.irs.gov/faqs/faq-kw33.html, and read each of the FAQ's...this FAQ applies to your situation:

Q: Can a court order determine who takes a child for a deduction? Does the court order supersede the IRS requirements?

A: Federal law determines who may claim a dependency exemption. Please refer to Publication 504, Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents.

I suggest that you prepare your return asap in advance (TurboTax Deluxe is relatively easy to follow) and the day you receive your W2's, submit your return electronically. The first return submitted electronically (you or your ex's) will be accepted by the IRS and you can receive your refund (if you're getting one) within two weeks. Any subsequent electronic filings will be rejected by the IRS indicating that the dependent's SSN has been used by another filer -- that filer will have to file a paper return. Your ex may still claim the child and receive an inflated refund...but ultimately, the IRS will require her to prove that the child lived with her, etc. When she cannot do this, the IRS will want our money back.

There is a form that you can download from www.irs.gov that your ex can endorse 'giving you' the right to claim the child (it's on the same link above) but in your situation, it is not necessary.

Contempt Of Court: I'm going to go out on a limb...you cannot be 100% sure of what a judge might say...I say file and let the judge have a good laugh when he hears the facts! I defer to more expert opinions than mine, though -- JETX, BCB?

 

[Fatherof4]

Thank you for the replies. I too have been to the irs website today and I think I will go ahead and claim him. I can prove I have him all of 2003 and provided all of his support.

I'm really not worried about a contempt charge. If she doesn't care enough to visit her own son, I doubt she will come back here to file for contempt.