tranquility
Senior Member
The problem with haiku's "link" is that it implies knowledge of some sort. Directing a person to a place that is not relevant to the question is worse than providing wrong information because it has some indicia of reliability. LdiJ doesn't want to provide a link as the question has been answered and the links provided repeatedly on the list and it is tiresome to go through more work (especially at this time of year) when another poster claims knowledge but does nothing more than prove ignorance. The problem is more than a simple link. The law is clear, but case law need be considered as well. This requires an article and not a link. I however have a moment and will provide what is necessary. I suggest intelligent people not read it and simply refer to LdiJ's post.
Ignorance is clear;
Poster's claim of knowledge wrong;
Will he post again?
-------From Klienrock
State courts' power to allocate dependency exemptions
In both an original divorce proceeding and in post-decree litigation, divorced parents often argue over who is entitled to claim the dependency exemptions for their children. The first question a state court must answer in these disputes is whether it has the power to allocate these exemptions. In most states that have considered the issue, the courts have concluded that post-TRA 1984 Code Section 152(e) was not designed to prevent them from allocating the dependency exemption. In other states, the courts have reached a contrary conclusion.
The majority of states take the position that a state court may compel the custodial parent to execute a written declaration releasing the right to the dependency exemption to the non-custodial parent and, as a result, these courts order the custodial parent to execute the waiver. [16] If the parent refuses to execute the waiver, it is within the court's power to cite the parent for contempt. [17] Those states that order the execution of a waiver include Alabama, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Ohio, Tennessee, Utah, Washington, West Virginia, and Wisconsin.
To these courts, the congressional goal of certainty in the allocation of the exemption is not thwarted by forcing a custodial parent to execute a waiver. Nothing in the statute or legislative history expressly prohibits a court from requiring a waiver, nor does the statute require that the waiver be voluntary. See Rohr v. Rohr, 800 P.2d 85 (Idaho 1990). From a policy standpoint, these courts believe they are in a better position than the IRS to ensure efficient enforcement of child support orders because they have the power to compel the non-custodial parent to remit the value of the exemption to the custodial parent in the form of additional child support.
Courts that refuse to order a custodial parent to execute a waiver generally conclude that the TRA 1984 amendment to Code Section 152 divested courts of such authority. For example, in McKenzie v. Kinsey, 532 So. 2d 98 (Fla. Ct. App. 1988), a Florida district court stated that requiring a party to execute a waiver is the equivalent of granting a taxpayer a deduction or exemption and that such power may only be granted by the legislature. In addition, the statute does not authorize courts to allocate the dependency exemption. [18] Instead, the statute implies the opposite; a waiver should be voluntary. Blanchard v. Blanchard, 401 S.E.2d 714 (Ga. 1991). States that refuse to order a custodial parent to execute a waiver include Florida, Georgia, Michigan, Missouri, Nevada, Oregon, South Dakota, and Texas. [19]
In refusing to require a custodial parent to sign a waiver, the Supreme Court of Nevada, in Jensen v. Jensen, 753 P.2d 342 (Nev. 1988), stated that coercive equitable relief was inappropriate. The Jensen court compared such coercion to ordering a spouse to sign a joint income tax return. Ordering a spouse to sign such a return is appropriate only when a legal remedy is inadequate. Since the court could not alter the amount of child support to compensate for the custodial parent's exemption, a forced waiver was unnecessary. "
16/ See, e.g., Hart v. Hart, 774 S.W.2d 455 (Ky. Ct. App. 1989); Fleck v. Fleck, 427 N.W.2d 355 (N.D. Ct. App. 1988); Lincoln v. Lincoln, 746 P.2d 13 (Ariz. Ct. App. 1987); Fudenberg v. Molstad, 390 N.W.2d 19 (Minn. Ct. App. 1986).
17/ See, e.g., Gamble v. Gamble, 562 So. 2d 1343 (Ala. Civ. App. 1990); In re Marriage of Feustel, 467 N.W.2d 261 (Iowa 1991); Monterey County v. Cornejo, 812 P.2d 586 (Cal. 1991); In re Marriage of Larsen, 805 P.2d 1195 (Colo. Ct. App. 1991); Cohen v. Cohen, 396 S.E.2d 344 (N.C. Ct. App. 1990); Serrano v. Serrano, 566 A.2d 413 (Conn. 1989); Rohr v. Rohr, 800 P.2d 85 (Idaho 1990); Wassif v. Wassif, 551 A.2d 935 (Md. Ct. Spec. App. 1989); Hart v. Hart, 774 S.W.2d 455 (Ky. Ct. App. 1989); Bailey v. Bailey, 540 N.E.2d 187 (Mass. Ct. App. 1989); In re Marriage of Einhorn, 533 N.E.2d 29 (Ill. App. Ct. 1988); Babka v. Babka, 452 N.W.2d 286 (Neb. 1990); In re Marriage of Milesnick, 765 P.2d 751 (Mont. 1988); Fudenberg v. Molstad, 390 N.W.2d 19 (Minn. Ct. App. 1986); Fleck v. Fleck, 427 N.W.2d 355 (N.D. 1988); Hughes v. Hughes, 518 N.E.2d 1213 (Ohio 1988); In re Pea****, 771 P.2d 767 (Wash. Ct. App. 1989); Cross v. Cross, 363 S.E.2d 449 (W. Va. 1987); Pergolski v. Pergolski 420 N.W.2d 414 (Wis. Ct. App. 1988).
18/ See Brandriet v. Larsen, 442 N.W.2d 455 (S. Dak. 1989); Davis v Fair, 707 S.W.2d 711 (Tex. Ct. App. 1986).
19/ Jensen v. Jensen, 753 P.2d 342 (Nev. 1988); McKenzie v. Kinsey, 532 So. 2d 98 (Fla. Ct. App. 1988); Lorenz v. Lorenz, 419 N.W.2d 770 (Mich. Ct. App. 1988); Echele v. Echele, 782 S.W.2d 430 (Mo. Ct. App. 1989); Gleason v. Michlitsch, 728 P.2d 965 (Or. Ct. App. 1986); Brandriet v Larsen, 442 N.W.2d 455 (S. Dak. 1989); Davis v Fair, 707 S.W.2d 711 (Tex. Ct. App. 1986); Fullmer v. Fullmer, 761 P.2d 942 (Utah 1988).
Ignorance is clear;
Poster's claim of knowledge wrong;
Will he post again?
-------From Klienrock
State courts' power to allocate dependency exemptions
In both an original divorce proceeding and in post-decree litigation, divorced parents often argue over who is entitled to claim the dependency exemptions for their children. The first question a state court must answer in these disputes is whether it has the power to allocate these exemptions. In most states that have considered the issue, the courts have concluded that post-TRA 1984 Code Section 152(e) was not designed to prevent them from allocating the dependency exemption. In other states, the courts have reached a contrary conclusion.
The majority of states take the position that a state court may compel the custodial parent to execute a written declaration releasing the right to the dependency exemption to the non-custodial parent and, as a result, these courts order the custodial parent to execute the waiver. [16] If the parent refuses to execute the waiver, it is within the court's power to cite the parent for contempt. [17] Those states that order the execution of a waiver include Alabama, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Ohio, Tennessee, Utah, Washington, West Virginia, and Wisconsin.
To these courts, the congressional goal of certainty in the allocation of the exemption is not thwarted by forcing a custodial parent to execute a waiver. Nothing in the statute or legislative history expressly prohibits a court from requiring a waiver, nor does the statute require that the waiver be voluntary. See Rohr v. Rohr, 800 P.2d 85 (Idaho 1990). From a policy standpoint, these courts believe they are in a better position than the IRS to ensure efficient enforcement of child support orders because they have the power to compel the non-custodial parent to remit the value of the exemption to the custodial parent in the form of additional child support.
Courts that refuse to order a custodial parent to execute a waiver generally conclude that the TRA 1984 amendment to Code Section 152 divested courts of such authority. For example, in McKenzie v. Kinsey, 532 So. 2d 98 (Fla. Ct. App. 1988), a Florida district court stated that requiring a party to execute a waiver is the equivalent of granting a taxpayer a deduction or exemption and that such power may only be granted by the legislature. In addition, the statute does not authorize courts to allocate the dependency exemption. [18] Instead, the statute implies the opposite; a waiver should be voluntary. Blanchard v. Blanchard, 401 S.E.2d 714 (Ga. 1991). States that refuse to order a custodial parent to execute a waiver include Florida, Georgia, Michigan, Missouri, Nevada, Oregon, South Dakota, and Texas. [19]
In refusing to require a custodial parent to sign a waiver, the Supreme Court of Nevada, in Jensen v. Jensen, 753 P.2d 342 (Nev. 1988), stated that coercive equitable relief was inappropriate. The Jensen court compared such coercion to ordering a spouse to sign a joint income tax return. Ordering a spouse to sign such a return is appropriate only when a legal remedy is inadequate. Since the court could not alter the amount of child support to compensate for the custodial parent's exemption, a forced waiver was unnecessary. "
16/ See, e.g., Hart v. Hart, 774 S.W.2d 455 (Ky. Ct. App. 1989); Fleck v. Fleck, 427 N.W.2d 355 (N.D. Ct. App. 1988); Lincoln v. Lincoln, 746 P.2d 13 (Ariz. Ct. App. 1987); Fudenberg v. Molstad, 390 N.W.2d 19 (Minn. Ct. App. 1986).
17/ See, e.g., Gamble v. Gamble, 562 So. 2d 1343 (Ala. Civ. App. 1990); In re Marriage of Feustel, 467 N.W.2d 261 (Iowa 1991); Monterey County v. Cornejo, 812 P.2d 586 (Cal. 1991); In re Marriage of Larsen, 805 P.2d 1195 (Colo. Ct. App. 1991); Cohen v. Cohen, 396 S.E.2d 344 (N.C. Ct. App. 1990); Serrano v. Serrano, 566 A.2d 413 (Conn. 1989); Rohr v. Rohr, 800 P.2d 85 (Idaho 1990); Wassif v. Wassif, 551 A.2d 935 (Md. Ct. Spec. App. 1989); Hart v. Hart, 774 S.W.2d 455 (Ky. Ct. App. 1989); Bailey v. Bailey, 540 N.E.2d 187 (Mass. Ct. App. 1989); In re Marriage of Einhorn, 533 N.E.2d 29 (Ill. App. Ct. 1988); Babka v. Babka, 452 N.W.2d 286 (Neb. 1990); In re Marriage of Milesnick, 765 P.2d 751 (Mont. 1988); Fudenberg v. Molstad, 390 N.W.2d 19 (Minn. Ct. App. 1986); Fleck v. Fleck, 427 N.W.2d 355 (N.D. 1988); Hughes v. Hughes, 518 N.E.2d 1213 (Ohio 1988); In re Pea****, 771 P.2d 767 (Wash. Ct. App. 1989); Cross v. Cross, 363 S.E.2d 449 (W. Va. 1987); Pergolski v. Pergolski 420 N.W.2d 414 (Wis. Ct. App. 1988).
18/ See Brandriet v. Larsen, 442 N.W.2d 455 (S. Dak. 1989); Davis v Fair, 707 S.W.2d 711 (Tex. Ct. App. 1986).
19/ Jensen v. Jensen, 753 P.2d 342 (Nev. 1988); McKenzie v. Kinsey, 532 So. 2d 98 (Fla. Ct. App. 1988); Lorenz v. Lorenz, 419 N.W.2d 770 (Mich. Ct. App. 1988); Echele v. Echele, 782 S.W.2d 430 (Mo. Ct. App. 1989); Gleason v. Michlitsch, 728 P.2d 965 (Or. Ct. App. 1986); Brandriet v Larsen, 442 N.W.2d 455 (S. Dak. 1989); Davis v Fair, 707 S.W.2d 711 (Tex. Ct. App. 1986); Fullmer v. Fullmer, 761 P.2d 942 (Utah 1988).
