Is this accurate? Other options?

[rachelr1978]

What is the name of your state? Texas

Hi - I'm Rachel and first time poster. I didn't find a lot with regards to my issues via search so I wanted to ask...I'd like to get some advice and comments if I could on my options (doesn't seem like there are many)

I divorced my husband in 2019 and we have 2 children, we did the mediated process. Ultimately that mediated document was incorporated into a decree which was finalized and submitted to the court. As part of that document we both agreed to file forms 8332 with the IRS for all future years - in the document our disabled son was listed for him to claim and I got to claim my daughter. Now that my daughter is a few years from "aging out" of the system I was advised by my lawyer that the smarter choice would have been to have claimed our disabled son instead as he will likely be on medicaid and have claims for much longer and as primary, I have the kids more. That's issue #1.

Issue #2: In our agreement, it states that we have 50/50 possession of both kids but the schedule defined in the document is not truly 50/50. Regardless
we both signed it and it was granted. As such, there was no child support rendered or requested. I want child support now and he has refused to change his position.
That's issue #2.

I've hired an attorney as did he, and we went back through mediation and got absolutely nowhere. I thought mediation was to be done in good faith with actively trying to resolve the issues. Ultimately I was advised:

For Issue 1: The family courts have no jurisdiction to force a modification to the 8332 form, it's a federal IRS related law and it was agreed upon. Only he
can choose to modify that/reverse it. My attorney basically said the same - if the family courts can't authorize it or change it, why was it permitted? It
sounds like it was allowed because we both agreed to it at the time? I want it changed and he won't.

For Issue 2: I was advised that it's a high bar to jump over, there's been no material changes that have occurred and it likely would not be granted. Especially
after only a year and that it was a signed agreement between us regardless of his schedule with the kids as he's following what was agreed to. In mediation my ex
volunteered to pay 50% of the expenses of the kids if I submit receipts to him but that's not what I requested or want so that didn't go anywhere. There's no way to change this either?

Thanks for reading...
R

 

[Zigner]

Your attorney has already told you what we will tell you.

 

[Zigner]

This wouldn't happen to be your husband, would it?

https://forum.freeadvice.com/threads/being-sued-changes-requested-to-mediated-settlement-agreement.659656/

 

[rachelr1978]

This wouldn't happen to be your husband, would it?

https://forum.freeadvice.com/threads/being-sued-changes-requested-to-mediated-settlement-agreement.659656/

No, some of what's in that past doesn't match the agreement my ex and I have.

 

[LdiJ]

What is the name of your state? Texas

Hi - I'm Rachel and first time poster. I didn't find a lot with regards to my issues via search so I wanted to ask...I'd like to get some advice and comments if I could on my options (doesn't seem like there are many)

I divorced my husband in 2019 and we have 2 children, we did the mediated process. Ultimately that mediated document was incorporated into a decree which was finalized and submitted to the court. As part of that document we both agreed to file forms 8332 with the IRS for all future years - in the document our disabled son was listed for him to claim and I got to claim my daughter. Now that my daughter is a few years from "aging out" of the system I was advised by my lawyer that the smarter choice would have been to have claimed our disabled son instead as he will likely be on medicaid and have claims for much longer and as primary, I have the kids more. That's issue #1.

Issue #2: In our agreement, it states that we have 50/50 possession of both kids but the schedule defined in the document is not truly 50/50. Regardless
we both signed it and it was granted. As such, there was no child support rendered or requested. I want child support now and he has refused to change his position.
That's issue #2.

I've hired an attorney as did he, and we went back through mediation and got absolutely nowhere. I thought mediation was to be done in good faith with actively trying to resolve the issues. Ultimately I was advised:

For Issue 1: The family courts have no jurisdiction to force a modification to the 8332 form, it's a federal IRS related law and it was agreed upon. Only he
can choose to modify that/reverse it. My attorney basically said the same - if the family courts can't authorize it or change it, why was it permitted? It
sounds like it was allowed because we both agreed to it at the time? I want it changed and he won't.

For Issue 2: I was advised that it's a high bar to jump over, there's been no material changes that have occurred and it likely would not be granted. Especially
after only a year and that it was a signed agreement between us regardless of his schedule with the kids as he's following what was agreed to. In mediation my ex
volunteered to pay 50% of the expenses of the kids if I submit receipts to him but that's not what I requested or want so that didn't go anywhere. There's no way to change this either?

Thanks for reading...
R

I am confused. Who signed form 8332 for your son? Even with a true 50/50 situation you are the one who would have had to sign form 8332 for him to claim the child. Therefore you are the one who can revoke it, he cannot. It is also possible to take that matter before the judge

Under the IRS definition of custodial parent, the custodial parent is the parent at whose home the child sleeps more nights out of the year. The IRS doesn't care what your divorce papers say. They care what their definition says.

However, all of these matters can go before a judge and let the judge decide. A judge can order a parent to revoke a form 8332. A judge can order child support without his agreement also. However, you do have to be careful that you don't spend so much money on a attorney, fighting a contested case, that you end up spending more than you can ever collect in child support.

 

[rachelr1978]

I am confused. Who signed form 8332 for your son? Even with a true 50/50 situation you are the one who would have had to sign form 8332 for him to claim the child. Therefore you are the one who can revoke it, he cannot. It is also possible to take that matter before the judge

Under the IRS definition of custodial parent, the custodial parent is the parent at whose home the child sleeps more nights out of the year. The IRS doesn't care what your divorce papers say. They care what their definition says.

However, all of these matters can go before a judge and let the judge decide. A judge can order a parent to revoke a form 8332. A judge can order child support without his agreement also. However, you do have to be careful that you don't spend so much money on a attorney, fighting a contested case, that you end up spending more than you can ever collect in child support.

Thanks for the reply.

I signed (as the custodial parent) allowing him to claim our son for "all future years" (it's section two in the document) - this was done in agreement with our mediation/decree. He cannot claim my daughter as part of that agreement. Of course now, I realize she will be aging out of the system soon and he will not be. I don't think this is fair but am being told I agreed to it, signed it in the settlement, signed it on the form itself, and it's been in place for over a year and now it's permanent. Supposedly a family law judge cannot rule or modify that area - i've heard this from my own attorney and his attorney said something similar during mediation. If he voluntarily agreed to change it, he could but he cannot be compelled to do so was the terms I heard.

 

[Zigner]

Thanks for the reply.

I signed (as the custodial parent) allowing him to claim my son for "all future years" (it's section two in the document) - this was done in agreement with our mediation/decree. He cannot claim my daughter as part of that agreement. Of course now, I realize she will be aging out of the system soon and he will not be. I don't think this is fair but am being told I agreed to it, signed it in the settlement, signed it on the form itself, and it's been in place for over a year and now it's permanent. Supposedly a family law judge cannot rule or modify that area - i've heard this from my own attorney and his attorney said something similar during mediation. If he voluntarily agreed to change it, he could but he cannot be compelled to do so was the terms I heard.

Form 8332 allows you to revoke the release of claim for future years.

However, from the court's point of view, you don't get a "do-over" because now, a year later, you've realized that you screwed up.

 

[LdiJ]

Thanks for the reply.

I signed (as the custodial parent) allowing him to claim my son for "all future years" - this was done in agreement with our mediation/decree. He cannot claim my daughter as part of that agreement. Of course now, I realize she will be aging out of the system soon and he will not be. I don't think this is fair but am being told I agreed to it, signed it and now it's permanent. Supposedly a family law judge cannot rule or modify that area - i've heard this from my own attorney and his attorney said something similar during mediation. If he voluntarily agreed to change it, he could but he cannot be compelled to do so was the terms I heard.

As far as the IRS is concerned it's only permanent if you choose not to revoke it. You have the right to revoke it. What would be fair (and what is commonly done) is once there is only one child to claim, that you alternate claiming that child until that child ages out. Now, even though the IRS allows you to revoke it you could still be held in contempt of court if you do, so you would need to take it before the judge and get the judge's agreement to change the court orders.

Also, if your daughter goes on to college you can continue claiming her and even get any education credits that she qualifies for. You also can claim the adult dependent tax credit of $500.00 once she turns 17, so its not a done deal just because she turns 17.

 

[LdiJ]

Form 8332 allows you to revoke the release of claim for future years.

However, from the court's point of view, you don't get a "do-over" because now, a year later, you've realized that you screwed up.

I don't think that is a fair statement to make. Orders regarding children are always fluid and modifiable.

 

[stealth2]

Of course, if OP unilaterally revokes 8332, Dad can file for contempt. And may well prevail.

 

[LdiJ]

Of course, if OP unilaterally revokes 8332, Dad can file for contempt. And may well prevail.

I did warn her about that. She was led to believe by someone that a judge had no power to change who claims the child because its an IRS form and its permanent. That is totally bogus and is information that needs to be corrected.

 

[Taxing Matters]

Ultimately I was advised:

For Issue 1: The family courts have no jurisdiction to force a modification to the 8332 form, it's a federal IRS related law and it was agreed upon. Only he can choose to modify that/reverse it. My attorney basically said the same - if the family courts can't authorize it or change it, why was it permitted?

State courts cannot force a change to the FORM, i.e. how the form works. But of course that's not the issue here. The issue is who gets the dependent exemption for the child and the tax benefits that go with that. The way is works is that the parent who has physical custody of the child for the greater part of the year (which as LdiJ noted is determined by by the number of nights the kid stays with each parent) is the custodial parent (CP) for federal income tax purposes. The other parent is the noncustodial parent (NCP). What the court decree says about LEGAL custody is irrelevant to the federal tax issue. So the IRS doesn't care about that. It is highly recommended that you keep a calendar in which you note each night the child stays you to help support your claim to being the CP in the years that child stays with you more nights than with the other parent.

Under federal tax law the CP is the one who has the right to claim the child as his/her dependent. There is only one way that the NCP may claim the dependent exemption and related benefits — that is if the CP signs a waiver releasing the exemption to the other parent and agreeing not to take that exemption himself/herself. Form 8332 may be used for that waiver. This means that as far as the IRS is concerned, for the years that you are the CP you may claim the dependent exemption for the child so long as you don't provide the NCP with a waiver (Form 8332). Since you apparently provided a Form 8332 releasing the claim for the disabled son for all future years you would need to provide your ex with a new Form 8332 revoking your earlier release of the exemption. You must do that no later than the year before the year the revocation takes effect. Thus, it is too late to revoke it for 2020. But if you provide revocation before the end of this year it can take effect for 2021. You must attach a copy of your revocation to each future return you file in which you take the exemption for that child.

The issue, of course, is what effect revoking your previous Form 8332 would have given your divorce & custody agreements. I've not read them and thus cannot say what problems might arise. In every state I'm familiar with the family law courts do in fact have the power to order parties before them to execute waivers releasing the exemption and to authorize revocations of the release as well. The issue that I can see here is that you had a negotiated deal in which you both agreed to a certain arrangement regarding the dependent exemptions. If you revoke your release of the exemption that would be contrary to the agreement that was made and would likely get you into trouble with the family court even though the IRS would be fine with it. Whether at this point you can get that agreement tossed and have the court order something different is something you'd need to ask your family law attorney about. Just make sure your family law attorney really understands how federal tax law works. He or she may need to consult with a tax law attorney to make sure of how things work. I meet a lot of family law attorneys who unfortunately do not really understand the federal tax law implications of family law matters, to the cost of their clients.

 

[LdiJ]

State courts cannot force a change to the FORM, i.e. how the form works. But of course that's not the issue here. The issue is who gets the dependent exemption for the child and the tax benefits that go with that. The way is works is that the parent who has physical custody of the child for the greater part of the year (which as LdiJ noted is determined by by the number of nights the kid stays with each parent) is the custodial parent (CP) for federal income tax purposes. The other parent is the noncustodial parent (NCP). What the court decree says about LEGAL custody is irrelevant to the federal tax issue. So the IRS doesn't care about that. It is highly recommended that you keep a calendar in which you note each night the child stays you to help support your claim to being the CP in the years that child stays with you more nights than with the other parent.

Under federal tax law the CP is the one who has the right to claim the child as his/her dependent. There is only one way that the NCP may claim the dependent exemption and related benefits — that is if the CP signs a waiver releasing the exemption to the other parent and agreeing not to take that exemption himself/herself. Form 8332 may be used for that waiver. This means that as far as the IRS is concerned, for the years that you are the CP you may claim the dependent exemption for the child so long as you don't provide the NCP with a waiver (Form 8332). Since you apparently provided a Form 8332 releasing the claim for the disabled son for all future years you would need to provide your ex with a new Form 8332 revoking your earlier release of the exemption. You must do that no later than the year before the year the revocation takes effect. Thus, it is too late to revoke it for 2020. But if you provide revocation before the end of this year it can take effect for 2021. You must attach a copy of your revocation to each future return you file in which you take the exemption for that child.

The issue, of course, is what effect revoking your previous Form 8332 would have given your divorce & custody agreements. I've not read them and thus cannot say what problems might arise. In every state I'm familiar with the family law courts do in fact have the power to order parties before them to execute waivers releasing the exemption and to authorize revocations of the release as well. The issue that I can see here is that you had a negotiated deal in which you both agreed to a certain arrangement regarding the dependent exemptions. If you revoke your release of the exemption that would be contrary to the agreement that was made and would likely get you into trouble with the family court even though the IRS would be fine with it. Whether at this point you can get that agreement tossed and have the court order something different is something you'd need to ask your family law attorney about. Just make sure your family law attorney really understands how federal tax law works. He or she may need to consult with a tax law attorney to make sure of how things work. I meet a lot of family law attorneys who unfortunately do not really understand the federal tax law implications of family law matters, to the cost of their clients.

Bankruptcy attorneys too. I know of one who filed bankruptcy for a client 3 days before an 80k tax debt could have been discharged.

 

[Zigner]

I don't think that is a fair statement to make. Orders regarding children are always fluid and modifiable.

Yes, but not (generally) a year down the road. And not, generally, because someone simply changed their mind or feels they made a mistake

 

[rachelr1978]

Yes, but not (generally) a year down the road. And not, generally, because someone simply changed their mind or feels they made a mistake

That's what I keep hearing so it sounds like I'm stuck. I was told it was generally frowned upon to request changes shy of 3 years short of emergency or some substantial change (winning the lottery, etc). I've never moved forward with a change request before but it seems to be structured to be as slow and as expensive as possible. Between mediation and my attorney i've been out $3400 and we're not even at trial!

I don't think my ex went to mediation in good faith but there's little that could be done. We were there for 3 hours, he listened to each of my items and only countered back with an offer to pay me directly what he's already spending monthly as long as I provide receipts which I don't believe is fair.

I have to seriously weigh my next steps.