Divorce Decree states ex-husband must rotate dependent tax deductions yearly
The title may be a bit confusing so I'll try to provide more clarity.
GF has been divorced for roughly 12-13 years & GF has two children with ex-husband. She has sole custody in a joint custody situation. Every year the dependent deductions are switched between GF and her ex-husband. So while it is joint custody, by no means does the Ex husband (Father) pay over half of the support for either child. While it may not be relevant, I'd guess the average time they see their father is ~5 hours per week. This is not restricted by GF and they are encouraged to see their father.
To my best understanding (and it's limited) of IRS tax code is that if the parent claiming the children as dependents does not pay for at least half of their support, they are unable to claim either child.
However this situation is discussed in the divorce decree which states the dependents will be claimed by the ex-husband every other year.
Am I way off base on my thought process here?
Posted Jan 29, 2020, 6:06 AM UTC
Oh, one I can finally comment on!
Source: am a divorced accountant with this exact custody order.
You're sort of correct. It depends on the year in which the divorce decree/custody document was created and filed. Technically, federal law trump's state law every time. A divorce decree is state law, and as long as it was dated after 2009, the IRS rules will trump the divorce decree and it doesn't matter what those papers state, if the dad isn't meeting all of the requirements (like the child has to live with you more than 50% of the year) the divorce decree will not matter, your gf can claim the child and when the IRS sends back a form to one of them that says "hey, you both claimed the kid and you did it last therefore you don't get the credit" whoever has the IRS defined right will get to claim the child.
However, if your gf's decree is dated prior to 2009, the IRS will accept divorce decrees submitted as proof as to who has the right to claim the child. Here is a part of the relevant information taken directly from IRS.gov.
"The IRS no longer accepts a copy of a divorce decree to show who has the right to claim a child as a dependent if the decree was executed after December 31, 2008. A noncustodial parent who claims the child as a dependent must file Form 8332 or a substantially similar statement with the return or, with Form 8453 for an electronic return.
If the divorce decree was executed before January 1, 2009, the IRS may accept certain pages of the divorce decree as a substitute for a Form 8332 if the decree unconditionally provides that the noncustodial parent may claim the child as a dependent, the custodial parent signs the decree and the decree otherwise conforms to the substance of Form 8332."
This is the best answer. However, you may wish to consider the impact on the children. Father will still be obligated to pay whatever support he is already paying but he may make it more difficult. Does she really need the extra hassle in her life?
Yes, which is why I don't believe she'll try to get anything changed. Again, the father rarely sees the children but needless to say as you mentioned, it's not worth the hassle.
While this may be true (I'd have to research this specifically), going against a court order will create issues for you at the state level. If you violate a custody/child support order expect to return to court and pay attorney fees (. Making a conflict of laws argument (the intersection of federal and state laws) is tricky even for experienced attorneys, let alone a pro se litigant.
I agree, she nor I would attempt to violate a court order. If we went the route of wanting this changed (and for all of the previous years) a proper route with an attorney would occur.
Thank you for your response and helping verify what I believe to be correct. I did read the exceptions when they were permitted to provide portions of the decree before 2009. But I did see the IRS tax document stating even if that was the case they were still required to be supplying more than 50% of the support and so forth.