Tax law

[dburgos69]

NEW YORK, NEW YORK

I file head of household for myself, daughter and granddaughter. I support my daughter and granddaughter. My daughter attends community college (full time) and her daughter attended day care (for which I paid) in the beginning of the year and now attends public school. My ex son in law is in the United States Coast Guard. He receives two checks; one is his pay check and the other is a family stipend. A stipend in which he receives under false pretense because he and my daughter have been separated for three years. He pays child support monthly. Last year I claimed my granddaughter as I supported her and has been living with me. During the latter part of finalizing the divorce the judge stated that my son in law claim my granddaughter on alternative years; but until my daughter begins to work he can claim my granddaughter and she has to make over $11,000. I cannot allow this to be finalized as I am the one supporting her over 50% of her costs and she lives with me 365 days a year. Even adding up the days she visits does not add up to half the time she is with him. My question is can I obtain an attorney to modify this order? The order is not yet finalized so can my daughter modify this order? Her attorney is pushing for us to leave it as is so that the divorce not be prolonged but I do not care if is is prolonged as he 1. already receives a stipend; 2. he does not give more than half of her support; 3. she does not live with him for more than half the year.

 

[LdiJ]

NEW YORK, NEW YORK

I file head of household for myself, daughter and granddaughter. I support my daughter and granddaughter. My daughter attends community college (full time) and her daughter attended day care (for which I paid) in the beginning of the year and now attends public school. My ex son in law is in the United States Coast Guard. He receives two checks; one is his pay check and the other is a family stipend. A stipend in which he receives under false pretense because he and my daughter have been separated for three years. He pays child support monthly. Last year I claimed my granddaughter as I supported her and has been living with me. During the latter part of finalizing the divorce the judge stated that my son in law claim my granddaughter on alternative years; but until my daughter begins to work he can claim my granddaughter and she has to make over $11,000. I cannot allow this to be finalized as I am the one supporting her over 50% of her costs and she lives with me 365 days a year. Even adding up the days she visits does not add up to half the time she is with him. My question is can I obtain an attorney to modify this order? The order is not yet finalized so can my daughter modify this order? Her attorney is pushing for us to leave it as is so that the divorce not be prolonged but I do not care if is is prolonged as he 1. already receives a stipend; 2. he does not give more than half of her support; 3. she does not live with him for more than half the year.

This is interesting, because its complicated as far as the law is concerned. If you are providing more than 50% of the child's support and the child lives with you, then absolutely under tax law, you are the one eligible to claim the child as a dependent. The family law judge who made the orders regarding the child's exemption has no authority over you, because you are not a party to the divorce. The judge also has no authority to override the federal tax code.

The judge also doesn't have any authority to order who gets the tax exemption, if neither parent is providing more than 50% of the child's support. One or the other of the parents is only allowed to claim the child if the two parents combined provide more than 50% of the child's support. Since you are not only paying for daycare, but also providing room and board for the child, its very unlikely that the parents could demonstrate that. However it all depends on just how much support dad is paying.

Therefore, you don't need to change the judge's ruling, as long as you can demonstrate that you provide more than 50% of the child's support.

However, that could pose a problem for your daughter. If dad doesn't claim the child because someone already has, or dad gets denied by the IRS because dad cannot demonstrate that the two parents combined do not provide more than 50% of the child's support, dad is likely to take your daughter back to court for contempt, and the judge may punish your daughter even if she can demonstrate that she did not claim the child.