Good evening. Your prior expert has alerted me that she has opted out, so I will try to assist you here.
For the following reasons I believe that the old agreement will not prevail as it pertained to custody then
, which has been modified by the new agreement. Because the IRS deduction is intimately
tied to custody itself, a judge would likely NOT find that the old deduction agreement to the then 50/50 mom, would continue, even though the old 50/50 parenting time no longer exists, and in fact a new agreement not including the waiver of the deduction to the mom, exist. In other words, you are right and I can not even imagine a judge holding otherwise. Yes, your husband could choose to give it to her, but not by any existing order. Moreover, the change in the IRS law on this, effective as of 2009, but changed via rules in 2008, certainly demonstrates that the IRS' new policy was that custodial parent gets the deduction by default, unless he gives it up, and to give it up, he must do so on a special IRS form now, unlike before.
In 2008, the new law your prior expert wisely noted, was created. Effective I believe for 2009, the IRS no longer allows for these agreements to fudge with deductions unless it is done in a certain way:
E. Support Test in Case of Child of Divorced Parents, etc.(1) Custodial Parent Gets ExemptionExcept
as otherwise provided in this subsection, if:
(a) a child (as defined in section 151(c)(3)) receives over half of his
support during the calendar year from his parents:
(i) who are divorced or legally separated under a decree of divorce
or separate maintenance
(ii) who are separated under a written separation agreement
(iii) who live apart at all times during the last 6 months of the
calendar year, and
(b) such child is in the custody of one or both of his parents for more
than one-half of the calendar year,
such child shall be treated, for purposes of subsection A, as receiving over
half of his support during the calendar year from the parent having custody
for a greater portion of the calendar year (hereinafter in this subsection
referred to as the custodial parent).(2) Exception Where Custodial Parent Releases Claim to Exemption for the
A child of parents described in paragraph (1) shall be treated as having
received over half of his support during a calendar year from the noncustodial
(a) the custodial parent signs a written declaration (in such manner
and form as the Secretary may by regulations prescribe) [see form 8332] that such
custodial parent will not claim such child as a dependent for any
taxable year beginning in such calendar year,
(b) the non-custodial parent attaches such written declaration to the
non-custodial parent’s return for the taxable year beginning during
such calendar year.
Here is the mandatory form that the dad would have had to have signed:
either releasing his deduction each
year individually (section 1) or noting that ALL years prospectively were to be released to the mom (section 2). Moreover, note that the form also contemplates the custodial parent REVOKING the release to the other parent, in section III.
I believe you and your husband have the winning case here, for the reason you say and in light of the IRS changes.
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