Hello and thanks in advance for any advice give.

My wife has four children from a previous marriage. She has custodial rights for all four and her ex pays child support on all four. For the past few years two children have been living with him by their choice and we have been reimbursing support. In the divorce decree it states that he will claim three and she will claim one for tax purposes as a dependent. This past February he went to prison and has not paid support for the year. The children came back to live with us. According to the federal tax code we have a right to claim all four children, which we did. Now he is bringing charges against us for not abiding by the divorce decree. Does he have a leg to stand on? If not, should we retain legal support or can we simply plead our case to the judge? Thanks again for the help.

Not fraud, but you could be in contempt of court for not following the chlld custody agreement.

If he was in prison and did not have a return to file, I see no problem, if he had a return to file, then he had the right to claim them and merely needed to file his return and claim them and then prove to the IRS and you would be required to file an admended return.

So if he had a return to file, yes he can take you back to family court. But to be honest he merely has to flie claiming them and prove with the court order and his return should be accepted.

Fr_Chuck, thanks so much for the quick response.

When researching the federal requirements, it states that the child has to live with the person at least six months and that the person has to supply at least 50% of the support. The children spent less than 2 months with him and I provided a minimum of 90% of the support for they year. I understand that I may be in contempt of a divorce court order but does federal law not apply to this? I can't see how someone in Prison can claim them as dependents. I admit that I am looking at things through my "rose colored glasses" but I am trying to see things fairly from both sides as well.

How could someone who provided support for two months claim them as dependents? I had to sign my name to the 1040 stating that the children lived with me for more than 6 months and I provided over half of the financial support. It seems to me that he would have to commit perjury in order to sign his 1040?

In the end, his mother made an attempt to claim the children and was informed that they had already been claimed. Of course, she knew that we had claimed them. It is now my understanding that she will travel here to file contempt charges. I assume that I will need to retain legal in this matter.

Any further clarification would be greatly appreciated, if any of the above has changed your first opinion.

Very best regards,
David Story

As per IRS only the custodial parent can claim the child, and child support does not count or there is a court order or the custodial parent signs a release.

David:

I am not an attorney, but the divorce decree says HE can claim the three children, NOT his mother, so I do not think you have anything to worry about when it comes to the contempt charges.

As for the rest, if the divorce decree says he can claim the children, and he WANTS to claim them, then he is allowed to, even if he has not provided the required supportand even if he will not benefit from claiming them. The divorce decree over-rides the Internal Revenue regulations in this case.

I suspect that, when the judge hears all of the facts in this case, he will amend the divorce decree to allow you to claim the children as being the best course of action for the benefit of the children.