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ehageny · Jan 19, 2009, 11:10 AM

By court order I am to claim my daughter on taxes. However, when she graduated this June she went to stay with her mother until she started college at the end of August. Her mother is now threatening to claim her since she stayed with her during that time and has continued to stay with her when not staying on campus. Does she have the right to do this?

JudyKayTee · Jan 19, 2009, 11:28 AM

Originally Posted by ehageny

By court order I am to claim my daughter on taxes. However, when she graduated this June she went to stay with her mother until she started college at the end of August. Her mother is now threatening to claim her since she stayed with her during that time and has continued to stay with her when not staying on campus. Does she have the right to do this?

A Court Order can only be changed by another Court Order. If the Order says YOU take the exemption, that's how it is until your ex goes back to Court and changes things.

IRS - if push comes to shove - recognizes only the Court Order(s).

MukatA · Jan 19, 2009, 07:29 PM

Her mother is non custodial parent as her daughter did not live with her for more than 6 months. She can not claim the child.
If both of you claim the child, both will get letters from IRS and then one of you must amend the tax return.
Read: Your U.S. Tax Return: Child of separated or divorced parents

AtlantaTaxExpert · Jan 20, 2009, 10:40 AM

JudyKayTree identifies the relevant point of law: the court order is a legal document that supercedes normal IRS procedures in this matter.

Hence, if the court order says you get to claim the daughter, then you get to claim you daughter unless you give that right in writing.

JudyKayTee · Jan 20, 2009, 12:50 PM

Originally Posted by AtlantaTaxExpert

JudyKayTree identifies the relevent point of law: the court order is a legal document that supercedes normal IRS procedures in this matter.

Hence, if the court order says you get to claim the daughter, then you get to claim you daughter unless you give that right in writing.

I posted from experience - my nephew by Separation Agreement, incorporated into divorce, claims the child; child lived with mother for approximately 6 months; nepew and mother both claimed the exemption. Nephew's Attorney made an argument that nephew gave up other considerations in order to claim the exemption and, therefore, if Agreement is not recognized by IRS the divorce itself would have to be taken back into Court.

Attorney further said IRS could not set aside a provision of a divorce which had been ordered by the Court, only the Court could change any provision.

IRS agreed. Nephew claimed the child.