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Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 11372
Experience:  Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
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my ex-husband and I were married for 13.5years we have a 15yo

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my ex-husband and I were married for 13.5years we have a 15yo & 9yo. I was awarded Primary Physical custody with joint legal custody. My Husband was awarded visitation every other weekend starting on Friday night and ending Monday AM. Also having visitation every night after school Monday - Friday. Our Divorce decree (from the Linn county courthouse in IOwa) states that we are both to each clam 1 dependent) for state and federal. My tax guy told us last year that I would be awarded both dependents due to the children being at my house more than 50% of the time.
Thanks for asking your question! I'm sorry to hear about your tax issue and I'm going to try my best to help you understand or resolve it.

Thank you for your question and thanks for using Justanswer.com. If your divorce decree states that you each claim one dependent, that's what you do. Your tax man was correct if no agreement was made.

Your ex can claim the child. He will file form 8332 since the child is not with him full time.

Please let me know if you need anything additional. Thanks again for using justanswer.com

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You should be aware that your question, as with most tax questions, can never really be answered completely...addressing all the permutations; that is because of the many assumptions that have to be made I have done my best to determine what I think you are asking and answering it in the most direct and understandable manner possible. If, however, after reviewing the questions, you have any uncertainties or further questions, please do not hesitate to ask.


Another expert here.

I have a different answer

A divorce decree cannot override IRS regulations or federal tax law. The parent who meets the requirements stated in the IRS tax regulations is entitled to claim the child as a dependent on his or her tax return. For divorces that took place after 2008, the custodial parent automatically has the right to claim a dependent child on his or her tax return. The custodial parent normally is the parent in whose home the child stayed for most of the year, excluding school and recreational activities. However, even if you are not in violation of federal tax law by claiming your child as a custodial parent, your ex-spouse could still sue you for violating a divorce degree that states that he or she can claim the child during the tax year in question. In worst case scenario, this could result in a contempt of court order.

http://suite101.com/article/does-a-divorce-decree-override-child-exemption-tax-law-a353426#ixzz2H7SGTKG0

Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 11372
Experience: Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
Lane and other Tax Specialists are ready to help you
Customer: replied 4 years ago.

in other words my ex would have to sign over his right to the dependents deduction.......Federal Law doesn't just trump state law as I was told by my tax man?


 

 

 

Federal Law always trumps state law, when the two are at issue, unless the federal government is infringing on the states general police power.

 

 

And even then, the state would have to take the federal government to court, which would be a constitutional law issue. (This is called federal supremacy)

 

 

You tax person is correct.

 

 

However, there has been a valid divorce decree violation, and unless the state court judge acquiesces (and they usually do) the judge could issue a contempt of court order against you.

 

If he did so, you can either suffer that order (pay the fine is probably as bad as it would get) OR take the state court decision to the federal district court.

 

 

You get the deduction

 

Customer: replied 4 years ago.

your answer got cut off


Sorry here it is again:

Federal Law always trumps state law, when the two are at issue, unless the federal government is infringing on the states general police power.


And even then, the state would have to take the federal government to court, which would be a constitutional law issue. (This is called federal supremacy)


You tax person is correct.


However, there has been a valid divorce decree violation, and unless the state court judge acquiesces (and they usually do) the judge could issue a contempt of court order against you.

If he did so, you can either suffer that order (pay the fine is probably as bad as it would get) OR take the state court decision to the federal district court.


You get the deduction



Hope this helps

Lane

Positive feedback (or an “accept”) is highly appreciated. That’s the only way we’re paid. BUT, if you need CLARIFICATION, COME BACK here. Also, feel free to bookmark this page to come back for reference.

Thank you.

Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 11372
Experience: Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
Lane and other Tax Specialists are ready to help you


Thanks so much!




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…pleasure working with you!

Lane


I'm sorry you rated my service as poor. I wish I would have had the opportunity to clarify some things for you.

This very scenario happened to my husband and I. His ex wife claimed their daughter the year we were supposed to claim her. We took her to court, and in the end she had to pay our legal fees plus her legal fees AND she had to amend her return. Could she have gone through a federal court? Maybe...but it would have cost more in legal fees. In the end, saving a few hundred bucks on her tax return ended up costing several thousand dollars.

I was giving you the answer that I believed would end up most favorable in your situation.

I hope this gives some clarification to my answer, and I hope our life experience sheds some light on what you would go through if you tried to fight for the deduction. If you want to claim your child, it would be easier to have your family attorney insist that you get to claim the children on the front end.

Have a happy, and safe, 2013.

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