The 2003 separation agreement allowed the ex to claim our daughter but in 2004 I was granted sole custody through family court for both children. The father had supervised visits suspended due to non-compliance. He has not seen his children since July 2004. He has claimed our daughter every year since. This seems very unfair. Our daughter is in college and will be 21 in June. The ex is supposed to be able to claim our son every other year starting next year. Can this be changed through family court? Thank you.
This is a little tricky because the agreement mandates it. Until that agreement is no longer effective, you must follow it. A family law attorney in your state can tell you if it is still valid.
However, even if you are required to give him the exemption, ONLY the parent that had the child a greater number of days can claim Head of Household and the EIC calculated with the children. So at least go back and claim those. You can only get a refund for three years, so it you want 2008 back, you have to file an amended return soon. You will have to file with a paper copy and explain your circustances in a short note. All you really have to say is that the children lived with you for most of the year. Being in college counts as days living with the parent they would have been with in the absence of being away for college.
But talk to a family law attorney because you may be able to go back and claim the exemptions and Child Tax Credits if the decree is no longer valid. But even if it is, you only have to give him those things. He cannot be Head of Household or the EIC.
I am no expert in this area, but my understanding is that as of July 2, 2008, a custodial parent who releases the right to claim a child can unilaterally revoke the release for future tax years. You need to check out Treasury Regulation 1.152-4(e)(3). You need to give notice to the father and attach a copy of the revocation to your tax return. I have never done this for a client myself so I am a bit fuzzy on the exact process.
I would suggest discussing this with an accountant or an attorney who does some work with taxes. I think under the circumstances you describe you would be justified.
Attorney Larson and Wall are spot on here. The separation agreement controls. If the agreement was modified when you were granted sole custody, there should not be an issue and you should be able to claim the children. You will need to go to the family law court to obtain a modification to the agreement before taking the children on your return which would be a violation of the court order.
Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.
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