Parties agree to alternate any and all tax credits for minor child with mother taking credit in even years and father in odd..

Asked 7 months ago - Orlando, FL

This is what old judgement said. In 2011 it was our turn and mother filed, taking all credits. We were told by IRS to file a paper return, and then it would be investigated and we could present our papers to IRS at that point. This year it would again be our turn to claim the child, but we just entered into a new order Nov with judge stating- The parties req clarification of which party would be designated to claim minor child for EIC, child tax, dependency exemp, and daycare credits. Court finds laws on who claims child governed by IRS and US code. The individ entitled to EIC is calculated on incomes of parties and type of contact each parent has with child to provide care for child. Court will not make any determination on who is entitled to any of the prior mentioned credits.

Additional information

Also says - Each parent shall abide by IRS regulations and US code with regard to who is entitled to the EIC, Child Ta, Dependency exemps, and daycare credits. If there is no ruling by IRS the parties may alternate the tax exemption for the chid with the mother getting the exemption for 2013.

In 2011 we had 156 overnights mom had 209. In 2013 we had 176 mom had 189. Where does this leave us? One of us is going to wind up paying back IRS for 2011 and now apparently we cannot claim the child for our turn this year in 2013 either? We had a contempt hearing but no IRS documentation in 2011, so judge said he couldn't do anything without it. Will we now not be able to address the 2011 contempt issue in light of the new judgement, when it comes up with IRS?

Attorney answers (3)

  1. Brent Allan Rose

    Contributor Level 20

    5

    Lawyers agree

    1

    Answered . Okay, first understand the law:

    The IRS says, essentially, whomever has "custody" (we don't even use that term in Florida anymore) gets to take most of the credits, deductions, and exemptions you are concerned about. So that parents can switch back and forth every year on their taxes, which is what most divorced parents do, somewhere in the divorce or parenting documents, it should say that the parent with "custody" for IRS purposes (that's the mother in your case) has to issue a certain form (IRS Form 8332) to the other parent (the father, in your case) at a certain time (odd tax years, in your case). The 8332 is then filed with the 1040 return, telling the IRS, "I know I don't have custody, but I get all the tax deductions, etc." The requirement to issue Form 8332 should be specifically stated in the settlement agreement. If it isn't, it's probably because the father didn't have a lawyer during the divorce and regrets it now.

    If the mother fails to do this (issue for 8332) to the father, it is NOT CONTEMPT. It sounds like you filed for contempt. I don't understand the judge's ruling in your case, but it may be that the judge realized he or she could not hold the mother in contempt. The proper remedy is to sue the mother for the loss of IRS money because she violated the contract (the marital settlement agreement).

    I don't know why the court order or parenting plan or court order were modified in your case, but it sounds like you may have now lost the right to go after the mother for failing to properly issue form 8332. In other words, the money is gone, and it may be gone on all future tax returns. you should discuss this with a local family lawyer.

    The contents of this answer should be considered friendly advice, not legal advice (I'm a pretty friendly guy),... more
  2. Hernan Hernandez

    Pro

    Contributor Level 14

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    Answered . I recommend you speak with a CPA as to the tax issues and to a family lawyer to address the exemption.
    I believe the issue of the claim should be further clarified and/or corrected in fron t of the family judge. You could also go to mediation with a family law mediator to attempt to resolve issues by way of agreement as you both may have tax exposure.
    Conatct a family law attorney.
    Good Luck,
    Hernan Hernandez, Esq.

  3. Robb Adam Longman

    Pro

    Contributor Level 13

    5

    Lawyers agree

    Answered . There is a lot going on here, it would be best to meet with someone who can review the agreement to determine what you may and may not be entitled to. Depending upon what the agreement specifically states would have an effect.

    This answer is based on general legal principles only and is not intended to provide specific legal advice. This... more

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