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Anne_C
Anne_C, Tax Attorney
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Experience:  Attorney, JD awarded with Certification in Tax Law
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My ex and I have two children (ages 14, 16) In our dissolution

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My ex and I have two children (ages 14, 16) In our dissolution it states the mother can claim the daughter, and the father can claim the son. The children have not had any visitation with their father since early 2008. Up to that point they were spending every other weekend with him and overnight on Wed too. He is remarried and his wife is a para legal. He has not provided his portion of their expenses since that time. So, he is not holding up his end of the agreement. So, this past tax year 2009 was my first opportunity to claim both kids since it is the first full year they have not had visitation with their father and he is not providing any support. I claimed both children this year and when he tried to claim the son, his return was rejected. He said he is sending in a copy of our agreement with a paper version of the tax form. Will my side be supported? A local tax instructor said tax law supersedes court documents.????
Submitted: 4 years ago.
Category: Tax
Expert:  Anne_C replied 4 years ago.

I'm sorry, I'm about to give you an answer that you don't like.

 

I don't agree with your local tax instructor that tax law supersedes a Marital Settlement Agreement (MSA). If an MSA or divorce decree says one parent is entitled to take a child as a deduction, than the MSA or decree controls

 

However, I do not agree that father's failure to visit with children and failure to provide support means that mother, who is the only custodial parent, is entitled to take both children as a deduction. If the MSA or decree expressly states that if father breaches the MSA or decree, mother is entitled to deduct both children, then I agree that it would enable mother to take both deductions.

 

If you look at your MSA or decree, you should have a provision that states that breach of one provision is not a waiver of all provisions of the agreement.

 

In other words, you are not entitled to breach the MSA or disobey a Court's order because husband did.

 

I don't think it's equitable to you at all, of course - but the legal way to resolve that issue would be to ask the Court to modify the MSA or decree.

 

Please don't "shoot the messenger!"

Customer: replied 4 years ago.
Thanks, Anne. So no circumstances matter? Their dad packed up all their belongings in late 2008 and dropped them off at our house. About 30 boxes of stuff. It included everything from his house that was in their rooms..I mean every single item from every drawer, etc... He was kicking them out. That is why I waited until 2009 tax year to claim both kids. It was the first year that both kids didn't see their dad and the first year they stayed every night at my house and did not stay at their dad's house at all. I just feel there has to be a way for me to claim both kids without having to go back to court. You don't forsee having these issues in the future after you sign those agreements. It has been 5 years since our dissolution. Dependant has a meaning--a definition of that word does not apply here. It's not right for my ex to claim one of the kids as HIS dependant when he does not see them or pay for them.
Expert:  Anne_C replied 4 years ago.

I think that your situation is incredibly unfair, and I certainly understand why you did what you did.

 

However, you need to let the judge make the decision about what is appropriate in your circumstances, since a judge is the one who told you what do (either by a MSA or decree) in the first place. Failing to comply with a Court's order is contempt.

 

That being said, take your ex back to Court and ask for him to be held in contempt for failing to pay child support. He should actually be required to pay more because he doesn't even have them at all.

 

Anne_C, Tax Attorney
Category: Tax
Satisfied Customers: 2302
Experience: Attorney, JD awarded with Certification in Tax Law
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Customer: replied 4 years ago.
Thank you for your advice. I definitely will take him back to court and attempt to make lots of changes to our agreement. The problem is...my ex has to agree to everything before it gets signed and approved by the judge. Can the judge make changes on her own due to the circumstances?? We already went back to court once to get him to pay child support directly from his checking acct instead of me having to wait on his personal check and the judge refused on the grounds that its not a good enough reason just because my ex doesn't want to communicate with me anymore. For example, when I send receipts and spreadsheets with expenses to my ex, his paralegal wife manipulates the numbers on the spreadsheets to reflect a credit for my ex, so they just send me a check for $18.00 for 3 months worth of expenses instead of $450.00 that they clearly owe. How do you fight that? I complain and nothing changes. I can't force them to pay. Is my only choice to file contempt charges against him for underpaying? The only proof is the receipts and with his paralegal wife in charge, she changes everything and has friends in the legal field to support her. The amount of money I will get in back support will equal the attorneys fees I owe so I feel helpless. I already owe $800 to my attorney now and he won't take on any new work since I already owe the $800. Up to this point, I paid every attorney bill in full (we're talking thousands) I have depleted my retirement account to pay my attorney. And now, when I really need help, I am stuck with this $800 bill and no child support! What is your advice?

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Anne_C
Anne_C
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Attorney, JD awarded with Certification in Tax Law