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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7406
Experience:  Experienced Family Law Attorney
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Not sure which lawyer I need but I think you are the closest.

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Not sure which lawyer I need but I think you are the closest. I am recently (last September) divorced and in the settlement, my ex wife agreed to allow me to file head of house, and claim our son (16 years old). She agreed to this in exchange for other concessions. She made the lions share of income, although we split the expenses for the last year of marriage equally based on income percentage, not 50/50, thus she contributed more than 1/2 towards household and child upkeep. It was indicated to me by another professional that no matter what the courts say, we cant give someone HOH status. What will happen if I do file that way?

LegalGems :

I am an Estate Law expert and will do my best to provide you with quality information. Remember, I am only permitted to give general information!

LegalGems :

One moment please as I look into this. If I recollect correctly, you can assign this, but let me verify.

LegalGems :

The issue is that this is addressing 2 issues, so I'm glad I checked. In order to qualify for HOH (head of house) you would have had to pay more than 50% of the cost of keeping up a home, and the qualifying person (your child) lived with you for more than 1/2 the year. So that is that issue -ie the HOH issue.

LegalGems :

Now for claiming a dependent - that is different. If you are divorced, your child received over half of his support from his parents (either you or your ex), and your son is in the custody of one or both parents for more than half the year, AND the custodial parent signs a written declaration that she will not claim the child, and the noncustodial parent attaches it to their tax return, then you can claim the child as a deduction. If your agreement (i.e. the settlement) specified this- that you can claim the child- you can ask her to write the declaration. If she refuses, you can file a motion to compel as this is a necessary document in order to effectuate the terms of your agreement.

LegalGems :

If you do file HOH then you will likely be penalized as the IRS will change your status to single, and then past due amounts plus penalties/interest will accrue.

LegalGems :

Form 8332 can be used as the written declaration.

LegalGems :

Let me know if you have any further inquiries on this and I will do my best to assist!

Customer:

Also, we have 2 kids, an 18 year old daughter and a 16 year old son. She agreed to let me have HOH and claim my 16 year old son and she will claim our 18 year old daughter. If I do file HOH, and my ex agreed via a settlement to NOT file HOH and allow me to, how would the IRS know?

LegalGems :

Well, technically I guess they wouldn't know...I'm just letting you know what the rules are to qualify for claiming HOH. !

LegalGems :

I'm sorry, that last post took quite a few minutes to go through. I'll check back with you in the morning to see if you have any follow up questions.

Customer:

And what happens if I DONT have the 8332? She is claiming the 18 year old daughter and I the 16 year old son. I know she wont cooperate and send me a signed 8332.

LegalGems :

If you don't have the form, and you have it addressed in the written agreement, you can go to court for a motion to compel. You can request attorney fees and costs since it's her conscious failure to execute the necessary documents to effectuate the terms of the settlement agreement. Then if the court orders her to complete it and she doesn't, it'd be a motion for contempt, again with a request for fees and costs. If you let her know you will follow through (it should be written) with the necessary court procedure, and that you will request fees and costs, they usually see reason at that point and comply.

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