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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 28001
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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Divorces says we split the 2 kids (18 and 23 yrs old) tax wise

Customer Question

Divorces says we split the 2 kids (18 and 23 yrs old) tax wise for deduction (1 apiece) until they are no longer claimable, then revert to every other year for the younger one. Spouse suddenly wants to claim both this year because 23 yr old (still in school) is the last year anyone can claim him. I've never been allowed to claim 2 ever, and this year is no different than previous years where we each took one. Spouse says since I am not technically paying chid support for 23 yr old, even tho I never ever claimed 2 when I did, so he no longer counts in the split the kids until they are no longer claimable defininition.... She married a millionaire and they need more tax deductions, but I am in the poor house from this 2005 settlement. She also claims she has not saved a dime of over $100,000 in child support on top of her wealthy lifestyle for son's college either.
Submitted: 1 year ago.
Category: Family Law
Expert:  LawTalk replied 1 year ago.
Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

Are you saying that in your Marital Settle Agreement the two of you contractually agreed to each take one child for the deduction for as long as you were capable of legally making that deduction?

Doug
Customer: replied 1 year ago.

yes. i dont have exact wording, but it says until they are no longer claimable. She now wants to interpret that as since I am no longer paying support on the 23 yr old he is not claimable, i view it as IRS definition of claimable. I pay $1000 month and she does not even need it.

Expert:  LawTalk replied 1 year ago.
Good afternoon,

Actually, if there is a divorce order that sets out who may claim a child as a dependent, then you don't have to technically meet the normal IRS requirements of being able to claim---so long as at least one of you, as parents, meet those requirements.


Generally, the custodial parent, the one who has custody for the greater part of the year, is entitled to the deduction. However, there are exceptions to this rule. A typical exception occurs when, in a divorce settlement, there is an agreement as to which parent will get the exemption. Prior to 1985 the IRS did not require any special paperwork in relation to a parent claiming the exemption under the divorce decree.
At present, the IRS requires that you attach to your tax return IRS Form 8332, or a statement conforming to the substance of Form 8332, as proof that you are entitles to the exemption. Here is a link to the form for your use: http://www.irs.gov/pub/irs-pdf/f8332.pdf


The declaration releasing the exemption may be for a single year or for a specified number of years, either consecutive or alternate, or for all future years. If the release is for more than one year, the original signed release must be attached to the first year’s tax return and a copy attached to future years returns.


If the parent who is responsible for signing the exemption release refuses to do so, and/or files for the exemption themselves, it will be necessary for the aggrieved parent to file a motion with the court which granted the exemption for an Order compelling the other parent to sign the release. If you are forced to seek court intervention in this situation, you should also consider asking the court to find the other parent in contempt; you may also ask the court for legal fees in connection with your need to file the motion.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.


I wish you the best in 2013,

Doug

Customer: replied 1 year ago.

but you did not answer my question. We have been alternating every year regardless of age and support. If I don't pay support for 23 yr old, so am I no longer able to alternate him even tho IRS says he is still claimable? I never got to claim 2 when I did pay for him as well.

Expert:  LawTalk replied 1 year ago.
Good afternoon,

I'm sorry for any misunderstanding, but I did understand your question, and I did answer it. My answer is in your favor.

As your divorce decree states that you alternate each year, then you have to alternate each year. The IRS could care less which of you pays more, or where the child lives. Your ex must abide by the contractual agreement outlined in the decree and marital settlement agreement.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug
Customer: replied 1 year ago.

sorry. making sure ....even if the dependent is 23 and decree says we are to alternate until 'no longer claimable', (whatever that means), i still can claim him this 1 last year as this my alternate year to claim him instead of the 17 yr old. She argues he gets no child support so she gets to claim him and the 17 yr old. I have to sit out and wait until next year for the 17 yr old. This was tricky to explain.

Expert:  LawTalk replied 1 year ago.
Using the regular meaning of the words, "no longer claimable" would be until such time as the child's own income level, or their decision to claim themselves---as they are allowed to do under the law---makes it impossible for either parent to claim them.

The agreement to trade off on the deductions was tied to your payment of child support, at least not as far as the facts you presented are concerned. So whether you pay support or not would seem to be a red herring.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.


I wish you the best in 2013,

Doug
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 28001
Experience: 30 years legal experience. I remain current in Family Law through regular continuing education.
LawTalk and 4 other Family Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

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