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Justwantfair · Oct 2, 2009, 08:47 AM

Recently our child support order was changed giving me sole legal & physical custody of an eight year old girl. My ex is fighting to continue to alternate the child tax exemption of this child as was agreed in our joint custody order. In researching the law regarding the child tax dependency under I.R.C. Section 152 (e)(1) the exemption is given to the custodial parent, unless the custodial parent waives their right to the exemption for that year.

My attorney (Family Law) has stated that often in our jurisdiction (Winn. Co, IL) if the non-custodial parent is paying a substantial amount of child support, i.e. $6000+/year that judges have ruled in favor of the alternating tax exemption years. She believes that our judge may enforce that in our situation. I would like all of my Ts crossed and Is dotted, as I strongly oppose this situation.

Here are the relevant facts:
*He is paid VA Disability that is not taxable for federal or state. Although his counter-claim is that he will be retaining employment in the future (doubtful).
*He does not have an "Earned Income" nor qualify for the EIC.
*He will be paying in excess of the $6000/year in child support.
*The time share is about 80/20 so under the Publication 501, she is not a qualifying child of his, as she does not live in his home even close to 50% of the year.

We go back to court on October 14th, although I feel that the Federal Tax laws support my claim, I am concerned that a judge will rule in favor of alternating years because of my ex's child support amount, although that has no legal bearing on the situation, I fear the judge will find it relevant. My Family Law attorney doesn't seem to have enough Tax Law information to feel comfortable supporting my claim and it has caused me to wonder what my best options are prior to a ruling against me.

Any feedback would be helpful. Thank you in advance.

this8384 · Oct 6, 2009, 08:45 AM

Originally Posted by Justwantfair

Recently our child support order was changed giving me sole legal & physical custody of an eight year old girl. My ex is fighting to continue to alternate the child tax exemption of this child as was agreed in our joint custody order. In researching the law regarding the child tax dependency under I.R.C. Section 152 (e)(1) the exemption is given to the custodial parent, unless the custodial parent waives their right to the exemption for that year.

My attorney (Family Law) has stated that often in our jurisdiction (Winn. Co, IL) if the non-custodial parent is paying a substantial amount of child support, i.e. $6000+/year that judges have ruled in favor of the alternating tax exemption years. She believes that our judge may enforce that in our situation. I would like all of my Ts crossed and Is dotted, as I strongly oppose this situation.

Here are the relevant facts:
*He is paid VA Disability that is not taxable for federal or state. Although his counter-claim is that he will be retaining employment in the future (doubtful).
*He does not have an "Earned Income" nor qualify for the EIC.
*He will be paying in excess of the $6000/year in child support.
*The time share is about 80/20 so under the Publication 501, she is not a qualifying child of his, as she does not live in his home even close to 50% of the year.

We go back to court on October 14th, although I feel that the Federal Tax laws support my claim, I am concerned that a judge will rule in favor of alternating years because of my ex's child support amount, although that has no legal bearing on the situation, I fear the judge will find it relevant. My Family Law attorney doesn't seem to have enough Tax Law information to feel comfortable supporting my claim and it has caused me to wonder what my best options are prior to a ruling against me.

Any feedback would be helpful. Thank you in advance.

It's really the judge's call. Does your ex pay child support and have visitation time with the child?

I had a friend go back to court to have his support amount lowered due to being laid off; his exwife then filed that she wanted to claim their son as a tax exemption every year and she got it.

Justwantfair · Oct 6, 2009, 11:35 AM

He pays child support, but he does not pay federal or state taxes. The tax exemption will only be against me, not to benefit him. I don't even think that he files, I know he doesn't have to because he has no tax liability.

He has one overnight/week and alternating weekends.

this8384 · Oct 6, 2009, 11:45 AM

Originally Posted by Justwantfair

He pays child support, but he does not pay federal or state taxes. The tax exemption will only be against me, not to benefit him. I don't even think that he files, I know he doesn't have to because he has no tax liability.

He has one overnight/week and alternating weekends.

Then bring that up in court. There is no justifiable reason for him to contest you claiming the child as a dependent if he can't benefit from doing so. Do you have an attorney or are you doing this pro se?

Justwantfair · Oct 6, 2009, 11:55 AM

I have an attorney, but her belief is with the high amount of child support he pays that it wouldn't be unlikely for a judge to weigh in his favor for alternating years, but she will be raising the issues with his non-taxable income, but his claim is that he will be getting a job. So he should be favored on a 'what if'.

this8384 · Oct 6, 2009, 12:36 PM

Originally Posted by Justwantfair

I have an attorney, but her belief is with the high amount of child support he pays that it wouldn't be unlikely for a judge to weigh in his favor for alternating years, but she will be raising the issues with his non-taxable income, but his claim is that he will be getting a job. So he should be favored on a 'what if'.

If that's what your attorney thinks, then odds are that it's going to go that way. She's seen enough of the courtroom to let you know what's going to happen.

At least he's just fighting over a dependency exemption; if you were given sole custody, that speaks volumes. Your daughter is safe and that's what's most important :)

Justwantfair · Oct 6, 2009, 02:19 PM

After $30,000.00 in the courtroom and an affect of about $3,500/year on my taxes... it's not a minor issue to me.

I have to sign a waiver, still trying to figure out how a judge can force me to waive my own rights.

this8384 · Oct 6, 2009, 02:34 PM

Originally Posted by Justwantfair

After $30,000.00 in the courtroom and an affect of about $3,500/year on my taxes... it's not a minor issue to me.

I have to sign a waiver, still trying to figure out how a judge can force me to waive my own rights.

It's not waiving your rights; even though he's a crappy father, he's still the biological parent and is entitled to claim the child as a dependent.

It sucks, I know. But the courts don't care about morals or emotions; they care about legalities.

Justwantfair · Oct 7, 2009, 08:39 AM

Originally Posted by this8384

is entitled to claim the child as a dependent.

That is the point, according to Federal Tax law only the custodial parent is entitled to claim the child.

It's a matter of where the child lives primarily, not related to child support paid.

this8384 · Oct 7, 2009, 08:51 AM

Originally Posted by Justwantfair

That is the point, according to Federal Tax law only the custodial parent is entitled to claim the child.

It's a matter of where the child lives primarily, not related to child support paid.

When my stepkids were living with their mom, she was referred to as the "custodial parent" and my husband was referred to as the "non-custodial parent", even though they shared joint custody of both children.

If that's Federal Law, then judges across the country are breaking it because I know numerous people who claim their kids alternately without having 50/50 physical custody.

this8384 · Oct 7, 2009, 08:59 AM

Actually:

(B) such child is in the custody of 1 or both of the child's parents for more than one-half of the calendar year, such child shall be treated as being the qualifying child or qualifying relative of the noncustodial parent for a calendar year if the requirements described in paragraph (2) or (3) are met.

I don't see where you're reading that the tax exemption is solely yours. Paragraph 2 says that you have to sign a release in order for him to claim your daughter, but you most likely agreed to do so previously in court. Being awarded sole custody doesn't void the rest of the agreement.

Justwantfair · Oct 7, 2009, 10:47 AM

Originally Posted by Justwantfair

Recently our child support order was changed giving me sole legal & physical custody of an eight year old girl. My ex is fighting to continue to alternate the child tax exemption of this child as was agreed in our joint custody order. In researching the law regarding the child tax dependency under I.R.C. Section 152 (e)(1) the exemption is given to the custodial parent, unless the custodial parent waives their right to the exemption for that year.

My attorney (Family Law) has stated that often in our jurisdiction (Winn. Co, IL) if the non-custodial parent is paying a substantial amount of child support, i.e. $6000+/year that judges have ruled in favor of the alternating tax exemption years. She believes that our judge may enforce that in our situation. I would like all of my Ts crossed and Is dotted, as I strongly oppose this situation.

Here are the relevant facts:
*He is paid VA Disability that is not taxable for federal or state. Although his counter-claim is that he will be retaining employment in the future (doubtful).
*He does not have an "Earned Income" nor qualify for the EIC.
*He will be paying in excess of the $6000/year in child support.
*The time share is about 80/20 so under the Publication 501, she is not a qualifying child of his, as she does not live in his home even close to 50% of the year.

We go back to court on October 14th, although I feel that the Federal Tax laws support my claim, I am concerned that a judge will rule in favor of alternating years because of my ex's child support amount, although that has no legal bearing on the situation, I fear the judge will find it relevant. My Family Law attorney doesn't seem to have enough Tax Law information to feel comfortable supporting my claim and it has caused me to wonder what my best options are prior to a ruling against me.

Any feedback would be helpful. Thank you in advance.

Joint/shared is different than sole custody, joint/shared is an agreement to share time and responsibility.

"In most cases, because of the residency test, a child of divorced or separated parents is qualifying child of the custodial parent." Publication 501. IRS filing requirement for exemptions. So if the residency test can not be met, four conditions have to be met, one of which is me waiving my right to claim her.

Justwantfair · Oct 7, 2009, 11:01 AM

Child Support and Taxes – How Will Child Support Affect Your Taxes

This explains it very clearly. The parent may pay more than half of the support of the child, but it is the parent spending the most time with the child that claims the exemption unless if is agreed to be waived. The only update is that as off 2008 they will not accept a divorce decree as a waival of rights.

this8384 · Oct 7, 2009, 11:04 AM

Originally Posted by Justwantfair

Joint/shared is different than sole custody, joint/shared is an agreement to share time and responsibility.

"In most cases, because of the residency test, a child of divorced or separated parents is qualifying child of the custodial parent." Publication 501. IRS filing requirement for exemptions. So if the residency test can not be met, four conditions have to be met, one of which is me waiving my right to claim her.

You're not understanding. It doesn't matter what the law says; you already agreed to alternating years and that agreement was signed by a judge. The only way for you to get the dependency exemption is for a new order to be entered.

If you agreed to accept 5 cents a month in child support and the judge signed that agreement, then you can't come back and say, "Well, this state says I'm supposed to receive X% a month in support" and then get it just because it's your state law. The agreement has to be modified and accepted by the court.

Justwantfair · Oct 7, 2009, 11:25 AM

I understand that, this is in the reconsideration.

We are changing from joint custody to sole. We are arguing the new order next Tues. I am just trying to ensure that he doesn't get to claim a credit that doesn't benefit him nor the child.

this8384 · Oct 7, 2009, 11:26 AM

Originally Posted by Justwantfair

I understand that, this is in the reconsideration.

We are changing from joint custody to sole. We are arguing the new order next Tues. I am just trying to ensure that he doesn't get to claim a credit that doesn't benefit him nor the child.

You've been around this board long enough to know that nothing is ensured in court. We can't tell you what the judge is thinking; I've seen quite a few judges do some pretty stupid stuff in the courtroom.

If your attorney has already told you that she doesn't think it's going to get changed, then it's probably not.

Justwantfair · Oct 7, 2009, 11:31 AM

She didn't say that, she said that she knows that the judge will weigh the support he pays as a consideration, although the federal government does not consider that a consideration, I just wanted to ensure that the issue is conveyed to the judge, that it is legally my exemption by federal law. To alternate years he is forcing me to waive my right to the exemption that I am entitled to by federal law and we no longer share custody.

this8384 · Oct 7, 2009, 11:34 AM

Originally Posted by Justwantfair

She didn't say that, she said that she knows that the judge will weigh the support he pays as a consideration, although the federal government does not consider that a consideration, I just wanted to ensure that the issue is conveyed to the judge, that it is legally my exemption by federal law. To alternate years he is forcing me to waive my right to the exemption that I am entitled to by federal law and we no longer share custody.

He isn't forcing you to do anything; you agreed to something. Your circumstances changed and as a result, you'd like to change another part of the agreement which is completely understandable.

Have you spoken with your attorney about the fact that you want the federal law brought to light? That's her job. She's acting in your best interests and she'll tell you what she thinks is going to happen.

JudyKayTee · Oct 7, 2009, 12:09 PM

I'm in this late but I don't quite understand - you are trying to amend an agreement which says that you will take the exemption one year and your "ex" will the next year?

IF Federal Law is as you state it (and it would appear that it is although I have done no research) then about half the divorced US is in violation.

This is very standard language in divorce decrees and separation agreements.

Justwantfair · Oct 15, 2009, 03:13 PM

Nope, the guy without any taxable or earned income with a disablity income of three times my earned income will get to claim her this year in addition to his two other children and unemployed spouse...

He will benefit from $1,000.00 child tax credit.

While I will lose a $1,000.00 tax credit and about $2,500.00 in EIC.