I have recently received sole decision making responsibilities and primary parenting time responsibility fro my son. His mother receives parenting time from Fridays at 5pm until Sunday at noon and 6pm-8pm Wednesdays every week. The problem i have is that the order states we will rotate dependency exemption years. Since i am the parent barring the brunt of the financial burden i do not agree with the mother being able to receive any type of monetary redemption for my son. I also notice in order to claim a child the have to live with you 6 months out of the year so she doesn't even fit the IRS requirements to do so.Is there something i can file with the courts to change that portion? I received the orders on Dec 23rd 2012.
You can attempt to appeal the order. However, most appellate courts give the trial court wide discretion and will not overturn their ruling. Honestly, it sounds like you received a ruling that was extremely favorable to you and I seriously would not mess with it. You have received sole decision-making (which is relatively rare) and primary parenting time responsibility. The mother has not received very substantial parenting time at all. Instead of being concerned about the tax exemption, which is totally up to the discretion of the Court and does not require that the child live with her 6 months out of the year, I would view the "glass half full" and be extremely pleased with the judge's ruling.
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Family Law Attorney
Yes, the IRS regulations say that the parent with whom the child resided the majority of the year is the parent who may claim the child as a dependent, UNLESS that parent signs a form 8332 allowing the other parent to claim the child. However, the divorce court has the authority, under Colorado law, to decide who may claim the child in a given year and can compel you to sign the form 8332 and give it to your wife. If you refuse to do so, then the divorce court may find you to be in contempt of court and have you held in the county jail until such time as you do sign the form 8332 and give it to your wife. The frequency with which each parent may claim the child is supposed to be related to the amount of support each provides for the child as determined by the child support worksheet used to calculate support.
You do have the right to appeal rulings of a trial court, but the time limits and process by which you appeal differ depending on whether the order was entered by a judge or a magistrate. If this order was entered by a magistrate, then your time to seek review has probably already expired. If this was an order entered by a judge, then you have 49 days from the date the order was entered to initiate the appeal.
However, as Mr. Leroi noted, trial courts have wide discretion in these matters, and it is very unlikely you will prevail on an appeal of this issue if the order is consistent with the child support worksheet.
www.karlgeil.com. This answer is provided as general information about a legal issue, is not legal advice specific to a particular case, and does not create a lawyer-client relationship with the person asking the question.
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