My Ex Claimed Our Daughter as a Dependent but I am Entitled

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Latest post 02-27-2008 3:19 AM by Taxagent. 5 replies.
  • 02-25-2008 6:07 PM

    • RabautL
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    Question [=?] My Ex Claimed Our Daughter as a Dependent but I am Entitled

    My ex-wife and I have been divorced since 2005.

    Our divorce decree states that I can claim our oldest daughter as a dependent on my state and federal tax returns until she is out of college. She is still in high school.

    The divorce decree also states that my ex-wife can claim our son as a dependent.

    My ex has informed me that she claimed both children as dependents on her 2007 state and federal tax returns. She has already filed the returns.

    I have not yet filed my returns.

    When I told her that claiming our daughter was not her legal right, her response was "too bad."

    What will happen if I claim my daughter as a dependent (which is my right according to our signed decree) for 2007? Will my tax return get rejected?

    What recourse do I have? Do I have to now take her to court?

    The difference between claiming my daughter and and not claiming my daughter is about $1000. To take my ex-wife to court would probably cost more than this in attorney fees.

    I am in a quandry.
  • 02-25-2008 11:15 PM In reply to

    Feedback [*=*] re: My Ex Claimed Our Daughter as a Dependent but I am Entitled

    If you file electronically, your tax return probably will get rejected and you will have to file a paper return.

    Eventually, the IRS will get around to writing to both of you and ask you both to provide the substantiation needed to justify your claims. The IRS, however, will process your paper return.

    Whoever loses this dispute probably will get hit with some back taxes and penalties.
  • 02-26-2008 12:22 AM In reply to

    Feedback [*=*] re: My Ex Claimed Our Daughter as a Dependent but I am Entitled

    “What will happen if I claim my daughter as a dependent (which is my right according to our signed decree) for 2007? Will my tax return get rejected?”

    You don’t say with whom the daughter lived with for the greater part of the year. If it was your ex-wife, then she is the custodial parent and the one eligible to claim the dependent exemption on the return unless she gives you a waiver saying she will not claim the exemption and thus allowing you to claim it. This waiver can be done on Form 8332. If this is your situation, then the divorce decree won’t matter to the IRS unless it was signed by your ex-wife and meets all the requirements of the waiver. The judge’s signature is irrelevant because federal tax law only looks at the waiver, not the decree. The bottom line is that in this situation, you’d likely have to go to court to get an order requiring her to give you the waiver.

    If you are the custodial parent, though, then you can claim the exemption. If she filed electronically first, then your return will be rejected if you also file electronically. You can, however, file a paper return and get it accepted. Then when the IRS computers later match the returns, it will send out letters to both of you asking you each to justify your claim the exemption. The one that is not entitled to the exemption will have additional tax to pay, along with interest and perhaps a penalty.
  • 02-26-2008 8:53 AM In reply to

    • RabautL
      Consumer
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    • Joined on 12-27-2006
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    Question [=?] re: My Ex Claimed Our Daughter as a Dependent but I am Entitled

    Taxagent,

    Thank you for your comprehensive reply.

    My ex-wife is the custodial parent and my daughter lived with her for the greater part of 2007.

    In past years, my ex-wife has signed the waiver. I doubt that she will sign the waiver this year.

    Our divorce decree was signed by both me and my ex-wife (and of course the judge).

    You state "the divorce decree won’t matter to the IRS unless it was signed by your ex-wife and meets all the requirements of the waiver."

    You also state "The bottom line is that in this situation, you’d likely have to go to court to get an order requiring her to give you the waiver."

    So now I have a few more questions:

    1. How do I know if the divorce decree meets all of the requirements of the waiver?

    2. What is involved in going to court to get an order requiring her to sign the waiver? Can I appear on my own in court and request this order?

    I know that almost no one advocates representing oneself in court, but as I said before, this is a matter of about $1000 and my attorney fees would likely be in excess of this.

    Thank you in advance for your help.
  • 02-26-2008 9:27 PM In reply to

    • Drew
      Consumer
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    • Joined on 03-30-2000
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    re: My Ex Claimed Our Daughter as a Dependent but I am Entitled

    Laymans take:

    Essentially the IRS wants to see either that Form 8832 or words to its exact equivalent as spelled out in tax law in the order itself. Taxagent knows the critical words or references--I'll get them wrong.

    To some extent if the order doesn't say she must sign the form you are going to need counsel to make the point --even if we all know that thats the critical step.

    The Gold standard was that IRS was out of trying to divine what orders said, it accepted only hte 8832, then that got softened so that IRS must accept either the 8832 or its equivalent--but I take it the order needs to meet the criteria set in tax code to a T--close doesn't count.

    If its close but not exact then you have no options but to take it back for a modified order or get a form 8832. --Unles you want to give away the point.

    Me, given that her past practice has been to execute the 8832 when in effect complies with the order I'd be inclined to write her at least twice firmly requestion said form executed for the year in question. If efect you seek to show detrimental reliance upon her to execute the form 8832

    Then I'd go ahead and file a paper return claiming my child anyway--it will take some time for IRS toget back to both of you. By then you mayhave jawboned it out of her or found some other need to take her to court and can have tacked this noncompliance on.

    If she jumped the gun and took both in defiance of what the order said I'd hope you could posture that for contempt and seek sanctions/attorney costs in your plea --that a willfulviolationof theintent of the order--not just a "mistake."

    Next year file first faster?



  • 02-27-2008 3:19 AM In reply to

    Feedback [*=*] re: My Ex Claimed Our Daughter as a Dependent but I am Entitled

    “1. How do I know if the divorce decree meets all of the requirements of the waiver?”

    Look at the Form 8332. In the instructions contained in the form, it has a section telling you what must be in a post-1984 decree or agreement for it to qualify as a waiver. The requirements are pretty simple; you may meet it if the order gives you an unqualified right to claim the child. The reason most orders fail to qualify as a waiver is that they are not signed by the custodial parent. You don’t have that problem here. Look at those instructions and see if you meet the other requirements, too.

    “2. What is involved in going to court to get an order requiring her to sign the waiver? Can I appear on my own in court and request this order?”

    You can always file the action yourself, if you know what to do. There is no requirement that you must use a lawyer. It's just that a lawyer will know what to do. While I am a lawyer, I do not practice in your state and cannot tell you how you’d do it. Each state is different and I don't know your state's rules nor have I read all the details of your decree. It may be filing a request for an order to show cause, a request ordering her to provide the waiver, or a request to find her in contempt.
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