I filed a Complaint for Modification of Divorce Agreement and get the tax exemption and if is possible my child custody. The court sent me a letter requesting a written memorandum before the pre-trial. They want my ex and I to get together and talk about the case, I don’t have a lawyer, he neither. This is my case and the reason why I filed the complaint: We got divorced a year and half ago, and we have a 2 years old daughter. On the initial agreement he was supposed to pay $87 for child support every week, and he was going to talk the baby every Saturday from 11am to 7:30 pm and some holidays. He owed me $1500, but because I’m taking him back to court he paid off everything yesterday. on January he said he didn’t have time so he changed Saturdays for Tuesday from 2:00 pm to 5:00, then he stopped seem her for about a month, then he switch the days again for Wednesday 2 to 5, but I ask him to take for from 2 to 8, but at 7:30 he used to drop her up. If it was raining is cold or too hot, he didn’t see her. On October 1st he founded out that I was taking him to court to ask for the tax exemption. So when he came to drop off the baby he insulted me and said it is no way he is going to sing her passport or any paper related to her, because he is paying child support and he deserve the tax exemption. On October 8th he sent me a text message, saying that he is not going to see the baby, not after January. He doesn’t ask or care for the baby, he doesn’t know anything about her. What should I do? What should I write on that memorandum? I don’t talk to him, we don’t have any type of communication, what should I do? Any tips to win this case.
Generally speaking, the parent with whom the child spends more than half the year is the parent who can claim the dependent exemption for the child unless that parent has provided the other parent with a signed Form 8332.
In your case it sounds like the child spends more time with you than with your ex. That being said, you are entitled to the exemption unless the court has ordered you to relinquish the exemption to him.
My answer does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This disclaimer is intended to be fully compliant with the requirements of Treasury Department Circular 230 and the terms thereof are fully incorporated by reference.
I'd be interested in seeing the original agreement and any modifications. It sounds as if you had an order that he take the exemption and you are looking to take it back because he spends little time with the child. Was he actually awarded the dependency exemption or was this left out entirely? are there any other issues that are the subject of the modification?
For modification, you need to show that there has been a material change in circumstances. The change in the amount that he sees the child is certainly relevant. His financial contribution can be argued as relevant. His payments of child support is relevant (is he current?). It's important to have all of these arguments ready and argue them well in order to represent your position.
As for the court mandated conference and memo, the order should have given you an outline of what is required in the memo. It is important to properly draft this after your meeting is held so that the court understands the issues and your position. Whether or not your former spouse drafts a memo, make sure you do it timely and file it appropriately.
In these situations, I always caution people that you may have hit the point in the case where you can no longer represent yourself. Attorneys are trained in the law and know what is required from the Court. It might be best for you to seek an attorney and have then take over at this juncture so that you comply properly and have your position represented as best you can.
For more information on Modification, take a read of this article.
This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.
The basic rules about claiming the child tax credit are at http://www.irs.gov/uac/Ten-Facts-about-the-Child-Tax-Credit. If you have custody more than half of the time and provide more than half of the support then you are the one of the two parents who is entitled to the credit under federal tax law. Of course it would be helpful to have the court make an order to that effect. One tip on winning the case would be to call the local Legal Aid Society and get help.
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