Does my ex-wife ever have the right to break our divorce decree about claiming our daughter for taxes ever? 24 Answers as of February 07, 2013

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?

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The Law Offices of Seth D. Schraier
The Law Offices of Seth D. Schraier | Seth D. Schraier
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: 2/7/2013
Office of Michael Hyde, Esq | Michael C. Hyde
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: 2/4/2013
Cantin Lawyers PC | John Morris
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
Law Offices of Frances Headley | Frances Headley
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
Peters Law, PLLC | Mark T. Peters, Sr.
No. Get your lawyer to file a motion for her to be held in contempt.
Answer Applies to: Idaho
Replied: 2/1/2013
    John Russo | John Russo
    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
    Woods, May & Matlock, PC | Robert J. Matlock
    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
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    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
    Carey and Leisure | John Smitten
    No. She has to comply with the order she cannot just do stuff on her own.
    Answer Applies to: Florida
    Replied: 2/1/2013
    Kalil & Eisenhut, LLC | Michael N. Kalil
    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
    Reade & Associates
    Reade & Associates | R. Christopher Reade
    Your ex-wife cannot violate the Divorce Decree; however you need to be aware that tax deductions for children are determined by the IRS and not necessarily the Family Court. Generally, only one person may claim all the child-related tax benefits for a child, including the dependency exemption, the child tax credit, the dependent care credit, the exclusion for dependent care benefits, head of household filing status, and the EITC The exception is the special rule for divorced or separated parents or parents who live apart for the last 6 months of the calendar year. Under this special rule, the noncustodial parent may claim the dependency exemption for a child if the custodial parent releases the exemption and certain other factors are met. Only the custodial parent may claim the dependent care credit. Usually, only the custodial parent may claim the EITC, because the child must meet the residency test for qualifying child, that is, the child must live with the parent for more than six months of the year except for temporary absences. Generally, custody is determined by the number of nights the child slept in the home of the parent or the parent had responsibility for the child for the night, except for temporary absences.
    Answer Applies to: Nevada
    Replied: 2/1/2013
    Law Firm of Jeffrey A. Conner, Esq. | Jeffrey Conner
    The decree controls. If you likewise claimed your daughter, it will be an issue resolved most likely by the IRS. If you both claimed your daughter, the IRS will pick this up and notify each of you. If you have a court decree saying you have the right to claim to claim your daughter, the IRS will likely side with you.
    Answer Applies to: Florida
    Replied: 2/1/2013
    Law Office of Kristine McDonnell | Kristine McDonnell
    Have your attorney file a motion for contempt.
    Answer Applies to: Ohio
    Replied: 2/1/2013
    Reger Rizzo & Darnall LLP | Kathleen DeLacy
    She can file to amend it.
    Answer Applies to: Delaware
    Replied: 2/1/2013
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    If you are in Colorado the "three extra weeks" would have nothing at all to do with the tax exemptions and could not justify changing anything. Your ex- apparently violated the existing court order without getting a court modification so you are justified in seeking some appropriate relief from the court. You don't indicate the total time and custody arrangements so it is not clear which one of you is (according to IRS rules) the parent with primary custody. Under IRS rules, whichever parent has "primary physical custody" must sign an IRS Form 8332 to waive the exemption and the other parent must attach that form to his/her return & this applies to every year regardless of what the court order says. Your court order should have indicated which parent is required to execute that waiver.
    Answer Applies to: Colorado
    Replied: 2/1/2013
    LAW OFFICE OF ANNE B. HOWARD | Anne B. Howard
    You both have to follow the court's order or go to court to change it.
    Answer Applies to: California
    Replied: 2/1/2013
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    No, file a motion to hold her in contempt and damages for what you had to pay.
    Answer Applies to: Michigan
    Replied: 2/1/2013
    Wolfstone, Panchot & Bloch, P.S., Inc.
    Wolfstone, Panchot & Bloch, P.S., Inc. | Mark Brown
    The court decree entitles you to claim the tax deduction in 2012. The fact that your child spend 3 additional weeks with your former spouse in 2012 does not change your entitlement. The position of your former spouse is without merit. File your 2012 tax return accordingly.
    Answer Applies to: Washington
    Replied: 2/1/2013
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    She can do that if you let her get away with it. Please contact a family lawyer year you for information about contempt of court actions.
    Answer Applies to: Ohio
    Replied: 2/1/2013
    Woolley Wilson, LLP
    Woolley Wilson, LLP | William R. Wilson
    Not if the Decree provides otherwise.
    Answer Applies to: Texas
    Replied: 2/1/2013
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    In New Jersey, where I practice law, it would depend on the court divorce judgment and the divorce settlement agreement. If it says you get to claim your child as a dependent on your taxes, then you get your child, at least in NJ.
    Answer Applies to: New Jersey
    Replied: 2/1/2013
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    This can be a complex issue. You can have an agreement in the family law court but that is not necessarily binding on the IRS. There is an IRS form that you should file to exchange the dependency deduction. If you don't, then the IRS can give the deduction to the person who had more than 50% time that year. Now, this does not mean you cannot go back to Family Law court and request a reimbursement of the money you lost. But the IRS will give the dependency to whomever had more than 50% time.
    Answer Applies to: California
    Replied: 2/1/2013
    Gateway Legal Group | Christian J. Albut
    The answer would be dependent on your actual terms in the judgment. However, the order and judgment control. If the judgment states you get that year for taxes, then that would be your year for taxes. You will need to enforce your rights on the claim.
    Answer Applies to: California
    Replied: 2/1/2013
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    Simply put, your wife cannot claim your daughter during "your" year just because she had her for extra time. The division of the tax exemption is generally based on each parent's proportionate share of income, not on the amount of time each parent spends with the child. If you are ordered to pay child support and if you remained current in that obligation for 2012, then you are entitled to claim your child pursuant to the decree.
    Answer Applies to: Arizona
    Replied: 2/1/2013
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