Ex and I agreed to alternate tax years with daughter, she is taking me to court to get sole tax deduction, can she?
We had it stipulated in settlement we would alternate. I pay $1,000 a month and can't write that off. Also stipulated that she was getting lion's share of assests and therefore could not contest settlement in future, yet she is. I don't want to hire a lawyer again as I am flat broke, but I want to contest this. I've been ordered to appear. I just want the judge to look at the original agreement. Do I need a lawyer? This seems frivolous to me.
Attorney answers (2)
If your ex has primary physical custody (50.1% of the time) she's entitled by Federal law to claim the dependency exemption, unless there's an agreement otherwise. If there's an agreed amount of child support and you're not paying it, not only is her request to take back the exemption not "frivolous", it may very well be successful. If there's a child support order which you can't afford to pay, YOU need to go back to court and get it modified, because if you "rak up" a significant amount of back-due child support, losing the tax exemption is the least of your worries.
3 people marked this answer as good
Henry Daniel Lively
Reputation Level 20
Answered over 2 years ago.
Tax Lawyer in Costa Mesa, CA.
I agree with attorney Saltman. The test is if the dependent lived with you over 50% of the time. If you are the non-custodial parent, you need an agreement that you are able to take the dependent. If you can pay for a lawyer, if is a good idea to hire one in this situation.
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3 people marked this answer as good
Other answers (1)
gaztaxlaw
Answered by a user, about 2 years ago.
If the divorce decree states that you have joint custody and are to alternate the exemption, you alternate the deduction. Period.
If the divorce decree grants the exemption to one spouse, that spouse gets it. For the other spouse to get the exemption, they need to get a signed Form 8332 for the applicable years (the IRS does not like generic Forms 8332, i.e., "all odd tax years"). No Form 8332 attached to the return = no exemption.
In your case, it appears that your spouse wants to modify the judgment so that she gets the deduction every year. So your question isn't really a tax question, but a family law question - can she get the decree modified?
You may want the judge to abide by the original settlement, but you'd better consider what her reasons are for the modification, because the judge certainly will. And you should be prepared to argue to the judge why those reasons aren't valid (the reasons should be in the motion to modify). If the judge agrees with her, they'll modify the agreement, and she'll get the exemptions. Otherwise, the agreement will stand as written, and you'll be entitled to continue alternating years.
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