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originallawyer, Family Law Attorney
Category: Family Law
Satisfied Customers: 840
Experience:  9+ years of experience in divorce, custody battles and mediation.
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The a couple has joint custody and splits time w the child

Customer Question

Hello Thomas,The a couple has joint custody and splits time w the child 50/50 according to the divorce decree, of corse w some variation due to circumstances, vacations dates etc. Becaqthe divorce decree states the mother gets to take the child as a dependent on her tax return but the father is attempting to have more days of custody with the child during the year to attempt be able to take the dependent on his return.What will the IRS rule ?
Submitted: 7 months ago.
Category: Family Law
Customer: replied 7 months ago.
Sorry wasn't done typing. Because the mother earns significantly less the divorce agreement states she gets to take the child exemption every year on her taxes. The fathers cpa said the IRS doesn't care and will rule based on $ and days spent w the child. Based on 'tie breaker' rules if two people can claim a dependent. What if any is the legal recourse for violating the divorce decree and will the IRS agree?
Expert:  Thomas Swartz replied 7 months ago.

Hello Customer,

I'm sorry I don't know the answer to your question I am going to opt out so another Just Answer attorney can assist you.


Expert:  originallawyer replied 7 months ago.


The IRS rule is that the parent who has the child the greater number of nights is considered the custodial parent. The divorce decree cannot overrule what the IRS ruling is, because the state courts do not have authority to dictate to the United States Government. If they both file taxes claiming the child as their dependent, then the IRS will conduct an audit and determine who is qualified to take the tax credit.

She may need to talk to a lawyer about how to ensure that she has the required amount of days to achieve the IRS credit. She could also file contempt charges on him if he does violate the order and tries to take the tax deduction. The Judge might remedy the situation by shifting custody slightly so the IRS requirements are fulfilled.

Customer: replied 7 months ago.
Thanks Tom. Is the normal procedure to have the father that may end up being the custodial parent due to a few days time fill out a form 8332 to release the exemption? Otherwise it seems he'd be in contempt of court for violating the divorce contract
Expert:  originallawyer replied 7 months ago.

Yes, he would have to sign the form to give her the exemption if he didn't want to be in contempt of court. Of course if he doesn't care about being in contempt, he can refuse to sign and force the Judge to make a decision.

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