Thicke2013 Posted January 22, 2015 Share Posted January 22, 2015 I'll try to make this as short as possible while giving details..... Divorced with 3 children. Divorce decree states that this year I claim 2 of the children and the EW claims the other. Basically now, she texts me yesterday and tells me that she claimed the oldest and the youngest on her taxes. Now, I bought a home this past year and I am unsure how this will affect my taxes. Either way, she was in the wrong. Now I am told that nothing can be done once it is filed it is done unless I want to protest it and wait until May or later to file my own taxes. Am I really stuck all because she decided she wasn't going to follow the agreement? Anyone else been through this? What are my options? Link to post Share on other sites
Maresy Posted January 22, 2015 Share Posted January 22, 2015 If you are entitled to the dependent deduction, then file a paper return. If you file an efile return and if another return claims the same social security number as a deduction then it will be rejected. Your paper return will not be rejected for this reason. The IRS will send a letter to each party claiming the deduction and ask them to explain their position. 2 Link to post Share on other sites
Author Thicke2013 Posted January 23, 2015 Author Share Posted January 23, 2015 If you are entitled to the dependent deduction, then file a paper return. If you file an efile return and if another return claims the same social security number as a deduction then it will be rejected. Your paper return will not be rejected for this reason. The IRS will send a letter to each party claiming the deduction and ask them to explain their position. Our divorce decree specifically states that all "even" years I claim 2 and she claims 1. All "odd" years she claims 2 and I 1. I have a call in to my CPA to ask her advice. I want to file as if I know nothing of what she has done, attach a copy of my divorce decree, and let her deal with the ramifications. Why should I have to jump through extra hoops to figure all of this out when she is the one not following legal documents. 1 Link to post Share on other sites
carhill Posted January 23, 2015 Share Posted January 23, 2015 Concurrent to soliciting advice from your CPA (great advice on the paper return, IMO), if this action could damage you monetarily, I'd suggest a minimum consultation with your attorney or a tax attorney at their firm. The good news is that it will work out. Gather your facts and be assertive in your affirmation of the decree. Expect that stuff like this will happen for as long as you have ties to your ex-spouse, whether legally, like this stuff, or socially. With kids, that's for life, in some form or another. Good luck! 1 Link to post Share on other sites
DivorcedDad123 Posted January 23, 2015 Share Posted January 23, 2015 Tax deductions for children are a whole different ballgame. It doesn't matter what your divorce decree says,because taxes are a federal issue(Fed taxes anyway). The IRS has guidelines for this. In order to be able to deduct a child,that child must have spent over 1/2 of the year with you,overnight. So,if she's had the kids over 1/2 of the time,she can deduct them. Same if you've had them over 1/2 the time. If she has them the majority of the time and she's letting you deduct them,it's a plus, but she's not entitled to do so. But,yes check with your accountant. Link to post Share on other sites
carhill Posted January 23, 2015 Share Posted January 23, 2015 OP, the IRS provides a publication, 504, which explains their perspective in clear language. Not being a father, but being familiar with preparing taxes, I gave it a quick read and, to me, it is understandable, so give it a try and then discuss any questions you might have with your CPA and lawyer. If there are unenforceable clauses in the decree, well, a lawyer likely published them and a judge approved them so you may have recourse for detrimental reliance if you've been monetarily damaged by reliance on an unenforceable decree. However, that aspect is unknown at this point. For now, it's a tax matter to clear up. Here's the link to the IRS publication: http://www.irs.gov/pub/irs-pdf/p504.pdf 1 Link to post Share on other sites
amaysngrace Posted January 23, 2015 Share Posted January 23, 2015 Tax deductions for children are a whole different ballgame. It doesn't matter what your divorce decree says,because taxes are a federal issue(Fed taxes anyway). The IRS has guidelines for this. In order to be able to deduct a child,that child must have spent over 1/2 of the year with you,overnight. So,if she's had the kids over 1/2 of the time,she can deduct them. Same if you've had them over 1/2 the time. If she has them the majority of the time and she's letting you deduct them,it's a plus, but she's not entitled to do so. That's not true. There's a divorce decree that specifically outlines how the exemptions will be taken. A legal document that she agreed to and signed. By doing so all that time spent with which parent blah blah won't hold water in a civil court if he wants to get the money back from her. Link to post Share on other sites
DivorcedDad123 Posted January 23, 2015 Share Posted January 23, 2015 You're dead wrong amaysngrace. The IRS is not beholden to a county circuit court judges decision. Link to post Share on other sites
amaysngrace Posted January 23, 2015 Share Posted January 23, 2015 You're dead wrong amaysngrace. The IRS is not beholden to a county circuit court judges decision. He isn't getting it from the IRS...he would be getting it from HER. Link to post Share on other sites
DivorcedDad123 Posted January 23, 2015 Share Posted January 23, 2015 This is what the IRS guideline says. "[FONT=Arial]Divorce decree or separation agreement that went into effect after 1984 and before 2009. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.[/FONT] The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.The custodial parent will not claim the child as a dependent for the year.The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent. The noncustodial parent must attach all of the following pages of the decree or agreement to his or her return. The cover page (write the other parent's social security number on this page).The pages that include all of the information identified in items (1) through (3) above.The signature page with the other parent's signature and the date of the agreement." Thats if you divorced during those times prior to 2009 and after 1984. After 2009, you have to have form 8332,signed by the custodial parent giving the non-custodial parent permission to deduct the child/children,regardless of the decree. Post-2008 divorce decree or separation agreement. If the decree or agreement went into effect after 2008, a noncustodial parent claiming an exemption for a child cannot attach pages from a divorce decree or separation agreement instead of Form 8332. The custodial parent must sign either a Form 8332 or a similar statement. The only purpose of this statement must be to release the custodial parent's claim to the child's exemption. The noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support. 1 Link to post Share on other sites
amaysngrace Posted January 23, 2015 Share Posted January 23, 2015 What are my options? Tell her that you'll see her in court. Link to post Share on other sites
carhill Posted January 23, 2015 Share Posted January 23, 2015 Dependents & Exemptions My non-lawyer opinion would be that, if exW isn't following the divorce decree as to form or function and/or the lawyers who drafted it were incompetent of federal law, which they should not be, your redress will be with those parties. Can't speak to the assets in ex-spouse's case but lawyers have E&O and, sufficiently compelled, would probably petition the court for a decree which respects federal law, if this one is found to have not respected it. For this year, I'd bite the bullet and take the exemption lack hit. Why? Because, being the son of CPA who had a lot of interactions with the IRS, his advice always was to keep them out of one's business; once in it, they seem to hang around forever. YMMV but that's my .02 on the interwebs. 1 Link to post Share on other sites
hotgurl Posted January 23, 2015 Share Posted January 23, 2015 If you file now and claim the same kids it will trigger an audit for both of you. I know my ex did that to me. I won simply because we didn't have a 50/50 split and he was not supposed to claim her. But I still had to go through the audit process and then my return was flagged for 5 years. I also had a second audit just because I had issues before. During the time I was flagged I always had to do extra paperwork to prove that I could claim it. what a pain. The earned income credit is one of the most abused credits and they really look at you after you've had an issue. 2 Link to post Share on other sites
amaysngrace Posted January 23, 2015 Share Posted January 23, 2015 Exactly carhill and hotgurl. Avoid involving the IRS every time. It's more trouble than it's worth. Link to post Share on other sites
Author Thicke2013 Posted January 23, 2015 Author Share Posted January 23, 2015 Wow thanks for all the replies! Custody of our children is split 50/50. I pay $500 a month child support (which is a whole other story) and she did sign the decree. I bought a house this year and paid in over $20k in taxes so yes this will affect me financially. Just wish I didn't have to deal with this stuff. Link to post Share on other sites
Author Thicke2013 Posted February 17, 2015 Author Share Posted February 17, 2015 A quick update for anyone interested: I went to my CPA and she agreed to work up my taxes both ways. One as if I was claiming 2 children and also claiming 1 child. This way I had the exact dollar amount that this cost me. I spoke with my attorney and he agreed that I my ex was in contempt of court and said I could hold her in contempt and take it to court if I wanted. He suggested something better IMO. I am court ordered to pay child support but there is no stipulation as to how I pay. As of now, I have it deducted from my payroll. However, I could pay one lump sum per month or pay 6 months in advance if I chose to. His advice, send her a certified letter letting her know the exact amount that she owes, give her a date a few weeks away so to give her time to pay it. Let her know that if not paid by that date to consider the money prepaid child support and that effective immediately child support would cease until the amount withheld equals the amount due to me. I am writing the letter as we speak. This is the only way I will ever get this money back. Link to post Share on other sites
Otter2569 Posted February 17, 2015 Share Posted February 17, 2015 Brother, I say go for it! I pay child support and would have to go back and look at my agreement to see what it says but ive been unemployed for 6 months and still pay as if I am making a good living. I am also looking at a job that pays substantially less. If I get the job I am going to re-calculate the child support and see about adjusting the amount. Link to post Share on other sites
carhill Posted February 17, 2015 Share Posted February 17, 2015 Be careful about the method of deduction. If it was voluntary, that is one thing. If it was ordered by the court/CPS, your employer could be subject to legal action if they unilaterally changed the garnishee of wages. That kind of stuff rarely goes well. Myself, I'd likely get a third opinion from a tax attorney not currently connected to the case, mostly because, if this isn't resolved, it's going to be an ongoing issue until child support/dependent deductions end. Link to post Share on other sites
Author Thicke2013 Posted February 17, 2015 Author Share Posted February 17, 2015 Be careful about the method of deduction. If it was voluntary, that is one thing. If it was ordered by the court/CPS, your employer could be subject to legal action if they unilaterally changed the garnishee of wages. That kind of stuff rarely goes well. Myself, I'd likely get a third opinion from a tax attorney not currently connected to the case, mostly because, if this isn't resolved, it's going to be an ongoing issue until child support/dependent deductions end. The reason my attorney said this will work is because while I am court ordered to pay child support, I am not ordered to pay it by payroll deduction. I did that on my own so that she could never say I was late or not paying, which didn't stop her but that isn't for this thread. So, I have to pay, but I could easily stop the payroll deduction and start mailing her a check every 2 weeks or once a month. No order on how it is to be paid as long as I do pay. He said, worse case scenario, she gets a lawyer and it goes before a judge at which time I would simply bring the divorce decree with me and it would be dismissed. Seems like a win, win for me although I know in family court there are rarely such circumstances. Link to post Share on other sites
EgoJoe Posted February 18, 2015 Share Posted February 18, 2015 If your attorney is sure of it, go for it. Link to post Share on other sites
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