Why does my ex-wife have the "custodial parent" title? 6 Answers as of February 08, 2012

File an Order to Show Cause in your divorce case, seeking an order that provides that you and your ex-wife alternate years for claiming dependency exemption for your child, requiring each party to sign and provide the other IRS Form 8332 by or before January 1 of the year in which the intended recipient is to receive the exemption, and providing that if a party has not timely complied with the last above requirement, that party shall be obligated to pay the other party the amount of additional income tax liability that the intended recipient has to pay, as well as the intended recipient's attorney's fees and costs incurred in seeking enforcement of the above provisions.

I will assume that she is "custodial parent" based on a claim with the Department of Child Support Services. That is a designation based on convenience sake, and does not by itself have some type of legal weight. It only means that she is the one who opened the case with DCSS. That would in no way give her any more right to claim the children any more than you. If it is truly 50/50, you have three options: 1. You could both claim the kids, be audited, and then have a big mess; 2. File an OSC to have a court determine who can claim which children; or 3. Agree to split the deduction and save the attorney fees.

IRS rules define the primary custodial parent for purposes of dependency exemptions as having the children 51% or more of the time. The support calculator sheet establishing your timeshare will have the percentage on it assuming the percentage is not written in your parenting order.

She wishes to be considered the custodial parent because the custodial parent gets to claim the children on their taxes unless they sign the right to the other parent. You should review your custody order with an attorney or family law facilitator to see if such a designation was ever made. If so, you may want to motion the court for a change. If not, consult your tax advisor about claiming the exemptions under the IRS rules as the parent with the highest adjusted gross income.

Yes, there are a variety of ways to deal with this issue. However, they can't be properly explained in a few short paragraphs. Plus, more facts are needed to properly answer your question. Best to hire a local family law lawyer to help you. The savings in taxes may be more than the cost of legal advice. Plus, the cost for legal/tax advice is deductable on your tax return.

If you have a true 50/50 timeshare you can go to court and ask for a court order that you can alternate the child dependency deduction.