if a divorce decree was written to state the non custodial parent is allowed to claim child on taxes, can the custodial parent override this and still claim? According to the IRS and my accountant, the IRS rules only care about the residency of the child. My stepchild lives with his mother and I and we are custodial parents. We want to claim him. We feel we support the child and the deduction should be ours.
State/Country relating to question: Illinois
Thank you for your question. I will do my best to assist you with your concerns. If you would like me to clarify my answer, I will be happy to do so.To answer your question directly, 'yes', the custodial parent can still choose to override and claim. The danger for the custodial parent is that the noncustodial parent, once he or she finds out (and their taxes are returned with this possible violation), can go back to court and file for a contempt of court order petition against the custodial parent, and have the judge admonish, fine, or even jail the offending party for ignoring the decree. To properly and formally file for the deduction without the risk of a possible contempt claim (and have the custodial parent pay for the other parent's attorney fees), consider filing in court for a modification of the decree and the removal of such language. While the IRS does not care (with this statement I agree with the accountant), the courts DO care if the language in the judicial decree are being intentionally ignored.Good luck.
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Thank you for that level of detail. To close on this topic, I just had one more area I wanted clarity about. It relates to the filing of a modification - does such a modification require agreement from the non custodial parent in most cases and are there any common reasons such a petition would be denied. That's all I had left on this, but thank you.
Thank you for your follow-up, Joe. You are most welcome, you asked a very serious question and I wanted you to be aware of both the positives and the negatives since only by knowing both sides can you choose to make the best decision for yourself.In terms of filing a modification, while it is ideal that both parties agree on the changes, that is very rarely the case. If the parties do not agree, then it is up to the judge to evaluate and review whether there are sufficient grounds to modify or deny the petition. There are many common reasons why a petition can be denied, one of largest being that there is no grounds to file--in essence if the parties agreed to conditions, these conditions were signed with knowledge and consent, and there is not change in circumstance beyond one party changing their mind, it is not enough to claim that the modification be granted. For example if the parties agreed to 70/30 custody and the 30 parent take the tax write off, the parents have adhered to the plan exactly as stated, there are no grounds to change. In the same example if the 30 parent only sees the child 10% of the time and refuses to get involved, then there is a legitimate ground for a possible modification and a possible change in benefits. This is a very rough example but I hope you see what I mean.Good luck.Dimitry Esquire41086.7173121528
I provide family and divorce law advice to my clients in my firm.
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