My divorce decree MSA allows me to claim my child as a dependent every other year

[metaler1]

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

*I'm the Respondent

My divorce decree states and I quote:

"Both Petitioner and Respondent agree to claim their child as a dependent on an alternating year basis. Accordingly for the 2015 tax year, Petitioner shall claim as a dependent for tax purposes and for the 2016 tax year, Respondent shall claim the child as a dependent for tax purposes. Then it shall revert back to the Petitioner and alternate until the child can no longer be claimed as a dependent by either parent."

I understand this as it is written because it is clear in our MSA however we have joint physical custody shared and my daughter lives with me every other week for 6 days 13 hours. The problem is, is that my ex wife is actually marking off days where say I have triggered the right of first refusal or she has gone home to her mother because she was sick or I was on vacation for more than 1 week etc. This has led to my child being with me for less than 183 days.

My ex feels as if she is entitled to the deduction regardless of what the MSA decree says. I do not want to give her the deduction but I'm afraid of what the judge may say if I do file a Motion to Enforce regarding this matter.

Now, that said I believe the IRS does not care about what is in the MSA/Decree anymore after 2008 however with it being in my MSA if i was to file a Motion to Enforce will the judge side with the MSA or refer to the IRS rules of 183 days?

 

[Zigner]

It's a court ORDER. Now, the judge can't override Federal law, so if your wife wants to claim the exemption, then that's her right, however, the judge can find her in contempt for failing to abide by court order.

 

[LdiJ]

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

*I'm the Respondent

My divorce decree states and I quote:

"Both Petitioner and Respondent agree to claim their child as a dependent on an alternating year basis. Accordingly for the 2015 tax year, Petitioner shall claim as a dependent for tax purposes and for the 2016 tax year, Respondent shall claim the child as a dependent for tax purposes. Then it shall revert back to the Petitioner and alternate until the child can no longer be claimed as a dependent by either parent."

I understand this as it is written because it is clear in our MSA however we have joint physical custody shared and my daughter lives with me every other week for 6 days 13 hours. The problem is, is that my ex wife is actually marking off days where say I have triggered the right of first refusal or she has gone home to her mother because she was sick or I was on vacation for more than 1 week etc. This has led to my child being with me for less than 183 days.

My ex feels as if she is entitled to the deduction regardless of what the MSA decree says. I do not want to give her the deduction but I'm afraid of what the judge may say if I do file a Motion to Enforce regarding this matter.

Now, that said I believe the IRS does not care about what is in the MSA/Decree anymore after 2008 however with it being in my MSA if i was to file a Motion to Enforce will the judge side with the MSA or refer to the IRS rules of 183 days?

Under federal law she is right. The IRS will side with her. Particularly if either of you fall within earned income credit range or the child attends daycare. Only the parent with who the child has resided more than 183 days can claim EITC or daycare credits. So, even if mom was obeying the court orders and letting you take the exemption, you could NOT claim EITC or daycare credits, you could only claim the child's exemption and the child tax credit...and she would still be able to claim EITC and daycare credits for the child.

However, if she claims the child's exemption or the child tax credit, then you can take her to court for contempt and she will be punished by the state court judge for not honoring the court orders.

 

[metaler1]

I dont want the EITC or Day Care credits. I just want the exemption only.

Under federal law she is right. The IRS will side with her. Particularly if either of you fall within earned income credit range or the child attends daycare. Only the parent with who the child has resided more than 183 days can claim EITC or daycare credits. So, even if mom was obeying the court orders and letting you take the exemption, you could NOT claim EITC or daycare credits, you could only claim the child's exemption and the child tax credit...and she would still be able to claim EITC and daycare credits for the child.

However, if she claims the child's exemption or the child tax credit, then you can take her to court for contempt and she will be punished by the state court judge for not honoring the court orders.