Does my ex-wife ever have the right to break our divorce decree about claiming our daughter for taxes ever? - Divorce Law Questions and Answers- LawQA.com

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Does my ex-wife ever have the right to break our divorce decree about claiming our daughter for taxes ever?

This past year I let my ex-wife keep our daughter for about three extra weeks because I was going to work everyday and would make it hard to find sitter. I was trying to be nice to her and she has free sitting. We have a decree that states every even year I get to claim our daughter and every odd year she does. She claimed our daughter for last year because she had her extra; can she do this legally?

The Law Offices of Seth D. Schraier
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If there is nothing in the divorce decree that connects parenting time with claiming a child for taxes, but simply alternates who claims the child every year, then she should not have claimed her for taxes. She did not necessarily do anything "illegal" but you may have a cause of action against her as a post-judgment motion for her violating that portion of the divorce decree.

Answer Applies to: New York
Replied: 2/6/2013

Answer By Michael C. Hyde

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Technically the IRS does not like it when parents trade off years claiming dependents. That said, If you paper file and submit your divorce decree (highlight the pertinent areas) as proof that you are the one authorized to claim your child, then the IRS will investigate and approve your refund. They may also reduce or recoup your ex-wife's refund. As an alternative, have your refund figured claiming your child and then request a child support credit in that amount because of her breach of the decree.

Answer Applies to: Michigan
Replied: 2/2/2013

Answer By John Morris

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No. Of the judgment says the deduction is yours, she no right to take it. This is a proper subject for contempt.

Answer Applies to: Connecticut
Replied: 2/1/2013

Answer By Frances Headley

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Her actions are in violation of your court order and you may seek redress there. Your best defense against this is to file early in the years that you have the exemption so that if she files later she will have to explain why she is also claiming the exemption.

Answer Applies to: California
Replied: 2/1/2013

Peters Law, PLLC
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No. Get your lawyer to file a motion for her to be held in contempt.

Answer Applies to: Idaho
Replied: 2/1/2013

Answer By John Russo

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No, if you are the custodial parent you need to now sign a form 8332 each and every year based upon a Treasury Ruling that came down about 3 years ago. I have seen a few legal websites giving advice on this issue and on one the attorney claims to be a tax attorney and advises folks to follow the court orders because under state law they could still be found in contempt if they don't allow the other parent to take the deduction as per the court order; Well this attorney 110% disagrees and on 5 separate occasions have argued this issue before the family courts in RI over the past couple of years and have been successful each and every time. As stated the Treasury department issued a ruling that stated The IRS will no longer recognize State court orders, and Divorce final judgements as to who can take the tax deduction, the custodial parent gets the deduction period end of story. The federal government has the last say on this issue the states, for a so called Tax Attorney to be telling people that they have to still abide by the state court order is frankly scary, The issue here is clear and simple, The supremacy clause of the U.S. Constitution, which in layman's terms states that if state law, collides with federal law, STATE LAW COLLAPSES. The State Court cannot in force these orders any longer, and they can't use backdoor tactics either,i.e. say ok you get the deduction but you have to reimburse the other party for what they lost, because that will still be denying you a right that only the federal government can give. So do what you want but she is 100% this year so just take the child yourself also, when the audit comes down you will win in the eyes of the IRS, why because you never signed 8332, and like I stated I believe and have won on the larger issue, never giving her the deduction again. Now the only thing you have to be concerned about is if you have Property Settlement Agreement, in your divorce, some states call them Marital Settlement, those are separate independent contracts, and if the deduction language is incorporated in that document then the state court does have options, under a breach of contract theory, so they could award that you pay what was lost to her in the odd years, so be careful on that, but even with a PSA she cannot take the child in your years so just file your return, again as long as you are the custodial parent.

Answer Applies to: Rhode Island
Replied: 2/1/2013

Woods, May & Matlock, PC
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The IRS computer system is supposed to catch those situations in which both parents claim the exemption for the child. If the computer catches it, the IRS will send audit notices to both parties.

Answer Applies to: Texas
Replied: 2/1/2013

Answer By John F Brennan
Musilli Brennan Associates PLLC
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The situation described would not be sufficient to allow her to act in contravention of the the Order, in my opinion.

Answer Applies to: Michigan
Replied: 2/1/2013

Answer By John Smitten

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No. She has to comply with the order she cannot just do stuff on her own.

Answer Applies to: Florida
Replied: 2/1/2013


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An Order is what an Order is until a Court changes it. If the divorce decree said you get the exemption, unless you agree otherwise, she has no authority to unilaterally change things. You can file a contempt application in Supreme Court, where the Decree was made. My suggestion is to tell her that that is your plan unless she files an amended return. If she's found in contempt, not only would she have to rectify the situation, but likely reimburse you for your legal fees and expenses.

Answer Applies to: New York
Replied: 2/1/2013

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