As a provision of my decree we agreed that he would be able to claim one of our children on his tax return. He finally paid all of the child support for the year and is asking to claim one of the kids. None of the other aspects of our agreement is being followed. I have my kids 365 and other than the child support he contributes nothing to their lives. Will I get in trouble if I say no? And do I need to legally make a change to my divorce decree?
A more precise answer to your question may depend on the language in the court's order/decree. This tax exemption is allocated between the parents in the proportion of their respective contributions to supporting the children. Case law has defined this to mean the proportion of the parties' respective incomes used to calculate the child support amount. You can only modify it by filing a motion, and if the exemption is already allocated based on your incomes and your income proportion has not changed enough to alter the 50/50 split, then the court should follow the law and order no change.
However, your question implies that the other parent did not pay child support timely. If the support obligation was not current as of 12/31/2018, then there is an argument that you can deny his request and claim both children. However, without a Form 8332 releasing his claim, whoever files their tax return first will have an advantage, because the IRS will reject a second tax return that claims the same dependent based on social security number. Finally, you may ultimately need a court determination if he submits the dispute to the court, so you will need to demonstrate to the court that he was not current on his basic child support obligation as of 12/31/2018.
The general information provided is intended to be a starting point only by describing general aspects of the law. It is highly important and advisable that you consult with a Colorado family law attorney concerning your specific legal rights and obligations. No attorney-client relationship exists, or is in any way created by reading, accessing or using the information.
You also might want to review the new Trump tax law that eliminated the dependency tax exemption for children.
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