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Is my divorce agreement specific enough to indefinitely exclude me from claiming my child as a dependent on my taxes?

Middleboro, MA |

We were divorced in 2004, at which time we signed an agreement for joint legal custody, I have physical custody, and have been the custodial parent since 2002. The only language in the agreement in regards to tax dependents is this one line: 'For tax purposes, Gregory Jr. shall be claimed as a dependent of Gregory Sr.' There is no other language at all specifically spelling out what year or years he would be allowed to claim him or that I agreed not to in the future. I understood it as just for that one tax year. I certainly wouldn't have forfeited that right for good. From what I understand, the agreement has to be "substantially similar to form 8332" to be considered. Can he succeed in his claim that I gave up my right indefinitely??

Attorney Answers 5

Posted

It seems like your ex husband has the right to claim the exception until the Emancipation of the child. However, the judgement is old enough to warrant a review of the child support award and changes in circumstance. I would suggest that you approach your asked husband and ask for the exception to avoid going back into court for modification of the child support award. If he refuses file a complaint for modification during the course of th during the course of the action.

This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.

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6 comments

Philip W. Mason

Philip W. Mason

Posted

Sorry I'm using a phone to answer this. If you file a complaint for modification the tax exemption can also be discussed

Philip W. Mason

Philip W. Mason

Posted

To clarify with the aid of keyboard -- Based on the language of your agreement it seems that your ex does have a right to take the exemption for the child through the child’s emancipation. However, your judgment is old enough to warrant a review of the child support award and if the respective financial positions of the parties have changed you may be able to modify the child support award upward in your favor (see calculator link below). If a modification would provide an increase in child support you may wish to go ahead with the modification. If the there is little or no increase you may use the threat of modification as a way of negotiating a transfer of the exemption from your ex, at least alternating the exemption from year to year. In any event, should you pursue a Complaint for Modification of child support the tax exemption would be a tangential topic for discussion and changes to the allocation of the exemption could be incorporated into any stipulation on child support – that is any agreement reached through court mediation. http://singleparents.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=singleparents&cdn=parenting&tm=15&gps=293_353_1119_571&f=00&su=p284.13.342.ip_p504.6.342.ip_&tt=2&bt=1&bts=1&zu=https%3A//wfb.dor.state.ma.us/DORCommon/Worksheets/CSE/Guidelines.aspx

Asker

Posted

Thank you for taking the time to answer my question. I'm having trouble figuring out whether or not a modification would provide an increase or decrease though because I have no idea what he is making now. I assume it is a considerable amount more but he also has remarried and has two other children now. I don't know how to factor all that in. Thanks again though, you were very helpful!

Philip W. Mason

Philip W. Mason

Posted

Child support is figured on his income not his expenses. His new marriage and 2 children do not need need to be factored in

Asker

Posted

Thank you! Boy this is so confusing... I thought that was something I'd have to factor in for the payer in the calculator's section 1, line e 'minus other support obligations paid'. I clicked on the link in that line for clarity and got the guidelines and read: ~~~~~~~~~~~~~ .... 3) a hypothetical amount of child support for a child with whom the Payer resides but for whom no child  support order exists, which hypothetical child support amount shall be calculated according to the  Guidelines Worksheet using the gross incomes of both parents of the child.  ~~~~~~~~~~~~ and prompted me to think I'd have to enter an amount calculated by his and her incomes for their two children together... What really makes me kick myself in the rear is, I agreed to $67 less a week than the original guidelines in '04 came out with, in an attempt to play nice. Since then I've had to go to court to get him to pay it at all, and to collect arrears of over $1500 twice. I think I need to hire someone to help me pursue this further! Thank you so much for your help! You've no idea how much I appreciate it

Asker

Posted

Sorry, the cut/pasted quote from the guideline chopped off the right side of the paragraph. It says 'a hypothetical amount of child support for a child with whom the payor resides but for whom no support order exists, which hypothetical child support amount shall be calculated according to the guidelines worksheet using the gross incomes of both parents of the child.

Posted

It sounds like you might have agreed to let your ex claim the child. You need to speak with your divorce attorney to determine that. Until then, I would sign the Form 8332 for you ex as specified by the agreement.

However, you get to claim Head of Household, the EIC and and dependent care expenses. Your ex cannot claim these unless he has the child a greater number of days during the year. He is only allowed to take the dependent exemption and the Child Tax Credit.

Christopher Larson
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Posted

Hi

There may be other language in the agreement that may indirectly bear on this question and create argument to help you. If this is the only language, it does say that your ex-husband has the right to claim an exemption for the dependent child. It does not state that the exemption is limited. I agree that you should consider going back to court on support issues. You can try to use that process to re-open the dependent situation and negotiate a change to a different deopendent formula such as alternate years. Good luck.

Steve Coren

This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.

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5 comments

Todd Allen Davidson

Todd Allen Davidson

Posted

Unfortunately, it looks like the clause in your agreement regarding the dependent exemption stopped short of adding language that limited your ex-husband's right to the exemption. The way that it reads clearly allows him to take it on his taxes for as long as your child is a dependent. According to the current agreement, the IRS form that you mentioned above would need to be signed by you releasing your rights to the exemption, which otherwise would have belonged to the parent that the dependent lives with a majority of the year. Attorney Coren and Attorney Mason are correct that addressing child support modification may be a good way to get this clause changed. As child support has no tax effect, an increase in the amount of child support would not increase your tax burden.

Asker

Posted

Thank you both for your answers. Question: If I find that a child support modification would result in less child support, can't I just use Form 8332 part III to revoke any future release of the claim?

Todd Allen Davidson

Todd Allen Davidson

Posted

Any time that you wish to deviate from a court order/judgment, you either need to follow it or have it modified to change it first. Only after you have the agreement successfuly modified should you take any actions denying your ex to claim the exemption. I would consult with a family attorney. That attorney could then read your agreement to determine if there is anything else that should be modified. In any contract negotiations, there is usually give and take. It is difficult to determine with your limited information what you gained and what your ex gave up in order to be entitled to the exemption.

Todd Allen Davidson

Todd Allen Davidson

Posted

By taking actions contrary to a court order/judgment, your ex could bring you back to court for contempt.

Asker

Posted

I will do that, thank you very much.

Posted

That is all the language that is needed.

You can seek a modification, of course.

Does this answer your question?

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Posted

I agree with the previous responses. Of course it's hard to re-open a divorce case even just by contacting your "ex" and not going to court. But most importantly is that in preparing your income tax returns you get very good advice because I regularly see preparers miss the issues of "filing status" and other credits even if it ends up you cannot claim the child as a dependent. That's only one piece and filing status selection can be, in some circumstances, much more valuable to you.

Eric P. Rothenberg, P.C.
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