Tie breaker Rule

[ohiograndma]

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

My daughter did not marry the father of her baby. They lived together for about a year, it didn't work out, and she is now living with me. She has not involved the courts in anything such as filing for child support, or a parenting agreement. She has been trying a shared parenting arrangement, but it doesn't seem to be working out very well. It looks like some changes and decisions need to be made about whether to continue with shared parenting and get some kind of legal agreement or just allow him visitation.

In the meantime, he wants to claim the baby on taxes and just give her part of what he gets back at his discretion which is what they did last year. She wants to take the full deduction this year. If they both claim the baby and the tiebreaker rule is used, it seems the first sticking point is who had the baby more nights? I believe she did, but its pretty close to 50/50. Nonetheless, she has legal and residential custody. Beyond that, he has the higher AGI. What would happen if he disputes that my daughter had the baby more?

 

[Ohiogal]

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

My daughter did not marry the father of her baby. They lived together for about a year, it didn't work out, and she is now living with me. She has not involved the courts in anything such as filing for child support, or a parenting agreement. She has been trying a shared parenting arrangement, but it doesn't seem to be working out very well. It looks like some changes and decisions need to be made about whether to continue with shared parenting and get some kind of legal agreement or just allow him visitation.

In the meantime, he wants to claim the baby on taxes and just give her part of what he gets back at his discretion which is what they did last year. She wants to take the full deduction this year. If they both claim the baby and the tiebreaker rule is used, it seems the first sticking point is who had the baby more nights? I believe she did, but its pretty close to 50/50. Nonetheless, she has legal and residential custody. Beyond that, he has the higher AGI. What would happen if he disputes that my daughter had the baby more?

When did she move in with you? How old is the baby?

As this is posted under child custody -- She has DEFAULT custody. However, she needs to involve the courts. And grandma, unless she is a minor, this is NOT your business. Your daughter was old enough to create this child and therefore she gets to deal with the consequences of such. You are NO ONE in this situation legally. By the way when it gets in front of the courts, both mom and dad stand equal before the courts. Neither is considered more important than the other. Time for your daughter to take care of business.

 

[TinkerBelleLuvr]

Actually, depending on AGI, GRANDMA may be in the position to claim the child.

 

[TinkerBelleLuvr]

Browser won't let me edit: Grandma's AGI and the percentage of support of the parents versus Grandma may determine who claims he child. This is dependent on when they moved in with Grandma.

 

[Ohiogal]

Actually, depending on AGI, GRANDMA may be in the position to claim the child.

I asked questions regarding the tax issue. I was speaking regarding the CUSTODY issue that she is no one legally. That is why I started that paragraph with:

As this is posted under child custody

Sorry for any confusion that may have resulted. That entire paragraph dealt with the issues of child custody.

 

[ohiograndma]

Wasn't sure where to post this.

I have no intention of claiming my granddaughter as a dependent. My daughter and I have been trying to figure out how IRS would see it if they both went ahead and claimed my granddaughter, because he said that he intends to still claim her, even if my daughter does. All other issues aside, neither of them kept records of who had her when. Although he took her a lot, it seems to me and my daughter that she still had her more. If he claims that he had her just as much as my daughter did, does the fact that she has default legal and residential custody mean anything?

 

[Ohiogal]

Wasn't sure where to post this.

I have no intention of claiming my granddaughter as a dependent. My daughter and I have been trying to figure out how IRS would see it if they both went ahead and claimed my granddaughter, because he said that he intends to still claim her, even if my daughter does. All other issues aside, neither of them kept records of who had her when. Although he took her a lot, it seems to me and my daughter that she still had her more. If he claims that he had her just as much as my daughter did, does the fact that she has default legal and residential custody mean anything?

Not necessarily. He and she both signed the affidavit of paternity, correct?
And you have not answered the question -- when did she and the baby move in with you?

Add: How much did your daughter make? How much did he make?

 

[OHRoadwarrior]

Here is the IRS breakdown on the situation.

http://www.irs.gov/pub/irs-pdf/f8332.pdf

 

[ohiograndma]

I don't know if he signed an affidavit. He was named as the father on the birth certificate and he was there at the birth. I don't know what the procedure is now. At any rate, no one is disputing that he is the father.

Her and the baby moved in around February of 2012. The baby is now 2. I don't know how much he makes, but my daughter says he makes more than her. My understanding of the tie breaker rule is that they first look at who the baby lived with more, and if its 50/50, then it would go to the parent with the higher AGI.

 

[TinkerBelleLuvr]

Are there any court orders? Has mom given dad an 8332?

 

[ohiograndma]

No. The courts have never been involved in anything, she hasn't even so much as filed for child support. She never gave him an 8332.

 

[Ohiogal]

I don't know if he signed an affidavit. He was named as the father on the birth certificate and he was there at the birth. I don't know what the procedure is now. At any rate, no one is disputing that he is the father.

Her and the baby moved in around February of 2012. The baby is now 2. I don't know how much he makes, but my daughter says he makes more than her. My understanding of the tie breaker rule is that they first look at who the baby lived with more, and if its 50/50, then it would go to the parent with the higher AGI.

The only way he is legally on the birth certificate is if he and mom both signed the affidavit of paternity.

 

[ohiograndma]

Then I assume that he did, because his name is on the birth certificate.

My thoughts are that since she has legal and residential custody by default, and its his word against hers that he had the baby 50% of the time, the burden of proof would be on him. He had very generous visitation, and she was attempting shared custody without getting the courts involved, but it still seemed like she had the baby more. I'm thinking she should just go ahead and do it. The worst that could happen is IRS sides with him and she'd have to give back some money. Do you agree that the burden of proof would most likely be on him to prove that he had the baby at least 50% of the time? It looks to me that physical custody simply means who had the baby and it seems to me that physical custody is what IRS is looking at first and foremost.

 

[Ohiogal]

Then I assume that he did, because his name is on the birth certificate.

My thoughts are that since she has legal and residential custody by default, and its his word against hers that he had the baby 50% of the time, the burden of proof would be on him. He had very generous visitation, and she was attempting shared custody without getting the courts involved, but it still seemed like she had the baby more. I'm thinking she should just go ahead and do it. The worst that could happen is IRS sides with him and she'd have to give back some money. Do you agree that the burden of proof would most likely be on him to prove that he had the baby at least 50% of the time? It looks to me that physical custody simply means who had the baby and it seems to me that physical custody is what IRS is looking at first and foremost.

Is your daughter going to claim EIC on the child?

 

[Proserpina]

Then I assume that he did, because his name is on the birth certificate.

My thoughts are that since she has legal and residential custody by default, and its his word against hers that he had the baby 50% of the time, the burden of proof would be on him. He had very generous visitation, and she was attempting shared custody without getting the courts involved, but it still seemed like she had the baby more. I'm thinking she should just go ahead and do it. The worst that could happen is IRS sides with him and she'd have to give back some money. Do you agree that the burden of proof would most likely be on him to prove that he had the baby at least 50% of the time? It looks to me that physical custody simply means who had the baby and it seems to me that physical custody is what IRS is looking at first and foremost.

If - by your own words - they have more or less a 50/50 timeshare, is there any chance she'll do the right thing here?