who can claim on taxes

This is a discussion on who can claim on taxes within the Family Law Questions forums, part of the Legal Questions & Answers Forum category; I am asking this question for my husband..... he was previosuly divorced and it says nothing in his divorce about who can claim the children. His ex wife does not ...

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  1. #1
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    who can claim on taxes

    I am asking this question for my husband..... he was previosuly divorced and it says nothing in his divorce about who can claim the children. His ex wife does not work and has never worked. He works and pays child support. They have joint legal custody of the children and she has primary phsyical custody of the children. As I stated she has never worked. She previosu lived with her parents and they claimed the children on their taxes. Now she lives with her brother and her parents still claim the kids and give her the money they get for claiming the kids. Does my husband have the right to claim at least one of them? If so, how does he go about getting that set up? All the information I have read states that the mother would have to sign a form allowing him to claim the chilren or child because she has primary physical custody. Any help would be apprecaited. Thanks!


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    Pasted from another site:

    If parents lived apart at all times during the last six months of the calendar year, or if they have a written divorce decree, maintenance agreement, or separation agreement, there is a special rule that applies to the dependent exemption.

    Under these circumstances, if the child received more than half of his or her total support for the year from one or both parents (the rest can be paid by other relatives or public benefits) and was in the custody of one or both parents during the year, the IRS rules assume that the custodial parent (defined as the parent who had custody of the child for the greater part of the year) should get the exemption for the dependent. However, the parties may change this presumption and allocate the exemption to the noncustodial parent if either of the following are true:

    - The divorce decree or separation agreement contains a provision in which the custodial parent waives the right to claim the dependent exemption. (The rules are slightly different if the agreement was entered into prior to 1985; the noncustodial parent must also provide at least $600 of support to receive the exemption.)

    - The custodial parent signs a declaration (using IRS Form 8332) relinquishing the right to claim the dependent exemption, and the noncustodial parent attaches this declaration to that year's tax return. Using this form, the custodial parent can relinquish the exemption for one year, a number of years, or forever, depending on what the parties agree to.

    If you relinquish the exemption, you are also relinquishing eligibility for the child tax credit.
    I am not a lawyer, this is not legal advice.

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    Read the Divorce Decree very carefully. I am surprised that two opposing attorneys did not address the issue of "who can claim which children for tax purposes". Were the children born after the separation/divorce? Jterry raises some good points but in the real world, the IRS will send you a letter stating the other party to the divorce is claiming the same child you are claiming. They then ask you to show why you are claiming this child. You would normally send a copy of the divorce decree. Simple, not really. Many decree's state that for instance the non custodial (physical not legal) parent may claim a certain child so long as their support is not in arrears. Now this is a dynamic situation that changes from month to month or year to year. Just very difficult to prove in court.

    The point is that the IRS does not want to get involved in these sticky issues of Divorce. The IRS believes these personal issues should be worked out between the parties.

    I would suggest that you folks do what the attorneys failed to do and work out an agreement as to who claims the children. Then, write the IRS, attaching your agreement. An attorney may do so or you folks (if congenial) may do so.

    I give you some fodder. Suppose your spouse and the ex have two children, one is 3 and the other is 7. Now, the one claiming the 3 year old has 4 more years of exemptions than the one claiming the 17 year old. Soooo, an agreement could be reached where each claims alternate years on the children and so on.

    There are mucho strategies to an amicable agreement. However, I must say that in all probability, your spouse and his ex double claiming the children will eventually fall under IRS law (regulations). One or BOTH will be in deep doo doo financially, given penalties and interest. Best get this agreement settled now and file in strict accorance with that agreement. Good Luck.

    PS In the real world IRS form 8332 is worth little more than the paper it is written on.

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    Ok I looked over the divorce papers.. Both were born before the divorce. My husband does not get along with his ex wife at all and she will not agree to allow himto clianm either of the children, because she takes a yearly vacation with the money her parents give her for claiming the children. So inthis instance, can he go to a lawyer and try to resolve this? If so do they need to change the divorce decree or what is the best thing to do? Any suggestions would help! Thanks!

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    Jterry seems to have answered your question. You claim the children and let the IRS resolve the dispute.
    Legal Disclaimer: Answers to questions on this forum are for informational and educational purposes only and do not constitute Legal Advice. No attorney-client relationship is established through this forum.

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    Per IRS rules, the custodial parent must sign a declaration form 8332 or piece of paper specifically granting the non custodial parent rights to claim the children. Bring the issue up at the next court hearing.

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    Dis is correct. The final resolution lies in a Family Court hearing. Logically and in reality, both parents will file form 8332 claiming the right to the exemption. Both parents will argue the finer points of law to their death in their favor.

    As I said previously, the IRS is NOT FAMILY COURT NOR DO THEY WANT TO BE INVOLVED IN THESE EMOTIONAL SITUATIONS. They will defer to both parties until or unless a valid court decision is presented. The truth is that the IRS will audit and get involved where there are really big bucks involved. They simply will not pull a full investigation on a $500 or $1,000 discrepancy between two parties. They will inquire and push the issue a bit but that is about it, where there is a divorce dispute. Just my opinion since the IRS often acts in strange ways.


 

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