Divorce/Child Support and taxes?

[slliemab]

What is the name of your state? MI

I got divorced in 1997 due to my ex cheating and at the time I didn't have much money so my ex husband filed. I didn't get a lawyer which I regret to this day because his lawyer set up the divorce decree so he would pay child support. I thought all was good until I went to do my taxes that year and found out that every year he gets to claim my kids on his taxes. He never picks them up, he never helps with clothing or glasses/medical expenses and he is over $30,000 in arrearages because any time The Friend of the Court catches him he quits his job so he don't have to pay child support.

I am married again and when my new husband and I did our taxes I was no longer eligible for the Earned Income Credit that I always used to get. I always count on my refund to help me out but since I couldn't claim my kids that live with me 365 days out of the year we had to pay taxes. I was telling a friend about it and she is a receptionist for a law firm. She told me that she thinks I can claim my kids next year even though my divorce decree says otherwise because of his arrearages if I file before him. He always waits til the last minute because he claims maximum so he usually ends up paying. If he didn't the Friend of the Court would take his refund and send it to me. My friend told me what would happen is he would get a letter after he claimed them saying I had already claimed them and the only way he could get the money would be to take me to court. The court would rule in my favor because of his arrearages so most likely he wouldn't even bother.

I want to be sure that is true before I do something that could get me into trouble. As soon as I can afford to I plan to try to get my divorce decree changed. I have 3 kids and am losing $3000 because the child tax credit is $1000 per kid.

If anyone has advice on how to change my divorce decree I would also be grateful. I have no idea where to go or what to do. Can I change it without a lawyer?

Also, because of his failure to pay child support I was forced to file Chapter 7 Bankruptcy. I didn't use a lawyer and it was closed without discharge because I didn't get the credit counseling course in on time. I am in the process of reopening it now. If I get my discharge within the next month or 2 will they take my tax refund if I get one? My current husband did NOT file with me because the bills I had were from before I met/married him. A good chunk of any refund would be his. Can they take any money I get back because of my bankruptcy?

 

[abezon]

You can ask the court to change the decree to say either that he only gets to claim the kids if he is paid in full on support as of 12/31 or that he just doesn't get to claim the kids at all. Given that he is $30,000 behind, the judge will likely grant either request. However, you might as for option 2, then offer option 1 as a compromise.

Your legal secretary friend is wrong. Your ex has a right to claim the kids which means you don't. Get the decree changed. Given what happened the last time you went up against a lawyer, you know to hire one of your own this time around. You might see if a legal clinic could help you.

You can list your expected tax refund as an asset you want to exempt, & the BK trustee won't take it.

 

[LdiJ]

You can ask the court to change the decree to say either that he only gets to claim the kids if he is paid in full on support as of 12/31 or that he just doesn't get to claim the kids at all. Given that he is $30,000 behind, the judge will likely grant either request. However, you might as for option 2, then offer option 1 as a compromise.

Your legal secretary friend is wrong. Your ex has a right to claim the kids which means you don't. Get the decree changed. Given what happened the last time you went up against a lawyer, you know to hire one of your own this time around. You might see if a legal clinic could help you.

You can list your expected tax refund as an asset you want to exempt, & the BK trustee won't take it.

I agree that she should be able to get the decree changed easily.....and she can do it without an attorney.

However I disagree slightly about the rest of your response. Unless her divorce decree meets the requirements to be a substitute for form 8332 (and not many divorce decrees do), then she is the one entitled to the exemptions under federal tax law, and its correct that her ex would have to take her to court for contempt in order to have any remedy.

Obviously, since he is 30k in arrears, she isn't going to get held in contempt. So the question is, does her decree meet the following requirements:

The decree or agreement must state all three of the following:

1) The noncustodial parent can claim the child as a dependent without regard to any condition (such as payment of child support).

2) The other parent will not claim the child as a dependent.

3) The years for which the claim is released.

It is also necessary that the decree or agreement contain the signature of the custodial parent, and the date of the agreement.

 

[slliemab]

Thanks for the advice! I think I am gonna go up to the courthouse and see if I can figure out how to get my decree changed just to be safe.

As for the BK, I did not list my refund as exempt because I filed in March of this year right after I got my refund from last year. If I had realized that I only had 45 days to get my 2nd part of credit counseling in I would have not had to worry about it but I heard that if you get your refund within 6 months of a discharge they can take it. Being that part of the money would be my husbands I want to know if that still applies. Is there a way to change it after filing and make my refund exempt? I'd really like to get my divorce decree changed then get a good refund and pay off my van that I reaffirmed.

 

[LdiJ]

Thanks for the advice! I think I am gonna go up to the courthouse and see if I can figure out how to get my decree changed just to be safe.

As for the BK, I did not list my refund as exempt because I filed in March of this year right after I got my refund from last year. If I had realized that I only had 45 days to get my 2nd part of credit counseling in I would have not had to worry about it but I heard that if you get your refund within 6 months of a discharge they can take it. Being that part of the money would be my husbands I want to know if that still applies. Is there a way to change it after filing and make my refund exempt? I'd really like to get my divorce decree changed then get a good refund and pay off my van that I reaffirmed.

Your husband can include an "injured spouse form" with your tax return and specify that his portion of the refund check should be made out to him only. That would ensure that his share of the refund could not be seized by the trustee....assuming that the trustee would do a tax return intercept.

If your trustee is on of the ones who would order you to turn over the refund check, rather than doing an intercept (and that is fairly common) then you need to discuss with your bankruptcy attorney the best way to ensure that your husband gets his share of your refund.

Its also possible that the trustee won't mess with your refund at all.

 

[abezon]

Unless her divorce decree meets the requirements to be a substitute for form 8332 (and not many divorce decrees do), then she is the one entitled to the exemptions under federal tax law,
It is also necessary that the decree or agreement contain the signature of the custodial parent, and the date of the agreement.

Since she represented herself, she would have had to sign the court order. Usually the attorney does it ......