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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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I claimed both children on my taxes in MA because both children

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I claimed both children on my taxes in MA because both children ended up living with me most of the time last year due to his (their father) living arrangements. We are supposed to have a 50/50 shared custody as per our divorce papers. He is saying I broke the law because in our divorce papers he is to claim one child and I the other. Have I broken the law?
Hi, thanks for your inquiry! I have been practicing family law for 17+ years and have specific experience with issues like yours. That being said...

I am working on your answer and will be with you as soon as it is finished. Feel free to go about your morning - you should get an email when my answer is posted.

Thanks!
Alexia Esq.
Good morning, and thank you. With regard to your post:

I claimed both children on my taxes in MA because both children ended up living with me most of the time last year due to his (their father) living arrangements. We are supposed to have a 50/50 shared custody as per our divorce papers. He is saying I broke the law because in our divorce papers he is to claim one child OK, I presume you are saying that in addition to the decree saying it is 50/50 time/custody, it is also expressly giving him the claim, right?...

 

and I the other. Have I broken the law? No, not exactly. There are really two "laws" here, one being a court order, the other being the IRS rule. The IRS rule goes by who is actually having the custody, which sounds like you. It used to abide by the decree, but no longer.


"For all divorces final after December 31, 2008, the IRS is no longer accepting a copy of a divorce decree to show who has the right to claim the dependency exemption. You must file Form 8332 or a substantially similar statement with the return or, if you file electronically, with Form 8453." Thus, you, having the child more, are the only one permitted to claim him/her, UNLESS you executed an 8332 giving the other parent that right. http://www.eitc.irs.gov/rptoolkit/faqs/divorced/

"Custodial parent and noncustodial parent. The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.
If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year.
A child is treated as living with a parent for a night if the child sleeps:
At that parent's home, whether or not the parent is present, or
In the company of the parent, when the child does not sleep at a parent's home (for example, the parent and child are on vacation
together)." See page 13.

Now, you have gone against the Decree/Order, as has your Ex (since he hasn't kept the child pursuant to that arrangment). Technically, you should have motioned the court to change that provision, and put the current parenting situation as an official Order. However, I can't see your Ex gaining anything by making a stink. First, you were not wilfully violating by taking the claim - you were following IRS rules that disallowed your ex to take the claim under these circumstances. If your ex were to file a motion asking the Court to make you pay him the amount he lost by not taking it - I can not see a court granting that motion considering he really forwent the custody he was supposed to have (unless it was your doing that made him not have the 50/50 which I doubt).

I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



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I think this is what you wanted to know. If not, please let me know and we can interact further. Otherwise, I wish you the best and ask that you Rate me now. HINT: I aim to provide only EXCELLENT SERVICE and ask that you click a rating on the RIGHT side of the choices OR, follow up with me if you need more follow up or clarification. AND, WHEN YOU DO RATE ME POSITIVELY, PLEASE SEND ME A REPLY LETTING ME KNOW YOU ARE DOING SO, SO WE CAN ENSURE IT GETS RECORDED. THANKS!



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Customer: replied 3 years ago.

Thank you so much Alexia. This is very helpful and thank you for clarifying/distinguishing the law and the Tax laws as well as the definition of child custody relating to time slept over at the house. I had suggested we go to court to clarify all the confusions but he refused. But I really didn't want to have done something I was not legally entitled to and this has settled my mind - I have done nothing wrong here:) Thank you so much and going forward I will file the form 8332 (I was not aware of this document) - again, very helpful to know.


Trish

You are welcome. Remember, the 8332 is only if you ARE going to give him the claim for the kids, not if you are taking it for yourself.

Have a great weekend!

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