Child Support/ Arreages/Tax Law

[Stiper2]

What is the name of your state? CO
I just filed my income taxes and tried to claim my daughter who I have custudy of. I got a call from H and R Block that someone else claimed my daughter this year. That would be my x-wife....Does anyone know the laws about claiming a dependant and if the non-custodial parent is in arrearages? I was told if they are in arrearages they can't claim the child. Is there anyplace I can get a copy of that law?

 

[fairisfair]

what does your court order say?

 

[Stiper2]

At the time of the divorce it stated I get to claim her every other year. That was when she was living with her mother.The law states when one of the parents is in arrears they can not claim her. Her mother is currently thousands of dollars in arrears. According to IRS the custodial parent is the only one that can claim unless you had signed a document saying you can't claim her. I know theres a law because the attorney I used at the time showed me this law. Just wondered if there was a place I can't get a copy of it.

 

[Ohiogal]

At the time of the divorce it stated I get to claim her every other year. That was when she was living with her mother.The law states when one of the parents is in arrears they can not claim her. Her mother is currently thousands of dollars in arrears. According to IRS the custodial parent is the only one that can claim unless you had signed a document saying you can't claim her. I know theres a law because the attorney I used at the time showed me this law. Just wondered if there was a place I can't get a copy of it.

What EXACTLY does your court order state about claiming the child?

 

[Stiper2]

It states we each claim her, every other year. I am looking for the law in regard to if one of the parents is in arrears the ability to claim her then.

 

[CourtClerk]

There is no such "law." It is an order that the judge makes in some cases. In others, one party will request it.

However, if she is in arrears, then perhaps CSE has filed a tax intercept and you will get the arrears paid from her refund.

 

[LdiJ]

There is no such "law." It is an order that the judge makes in some cases. In others, one party will request it.

However, if she is in arrears, then perhaps CSE has filed a tax intercept and you will get the arrears paid from her refund.

That isn't necessarily correct.

I am too tired to deal with this tonite, but perhaps I will revisit it in the morning. However I will remind everyone that its not as simple as you all make it out to be.

 

[Stiper2]

THere is a law and I have a copy of it. It overrides anything you may or may not have in your divorce decree. IRS has alot to say about this ....as long as the child has lived with me for at least 6 months out of the year I legally can claim her. If the non-custodial parent is in arrears they legally can not claim her as a dependent.

 

[Silverplum]

*waves at Stiper*
Walks away.

 

[Stiper2]

Waves back to Silver Plum and gives her a big hug!!

 

[Silverplum]

Waves back to Silver Plum and gives her a big hug!!

No, no. Cross no boundaries.
But waving is nice.

 

[TinkerBelleLuvr]

http://www.irs.gov/publications/p504/ar02.html#d0e1345

Children of Divorced or Separated Parents
A dependent is either a qualifying child or a qualifying relative. In most cases, because of the residency test (see item (3) under Tests To Be a Qualifying Child in Table 3), a child of divorced or separated parents will qualify as a dependent of the custodial parent under the rules for a qualifying child. However, the noncustodial parent may be able to claim the exemption for the child if the special rule (discussed next) applies.

Special rule for divorced or separated parents. A child will be treated as the qualifying child or qualifying relative of his or her noncustodial parent if all of the following apply.
The parents:

Are divorced or legally separated under a decree of divorce or separate maintenance,

Are separated under a written separation agreement, or

Lived apart at all times during the last 6 months of the year.

The child received over half of his or her support for the year from the parents.

The child is in the custody of one or both parents for more than half of the year.

Either of the following applies.

The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement made after 1984, later.)

A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2007 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during 2007. See Child support under pre-1985 agreement, later.

Divorce decree or separation agreement made after 1984. If the divorce decree or separation agreement went into effect after 1984, the noncustodial parent can attach certain pages from the decree or agreement instead of Form 8332. To be able to do this, the decree or agreement must state all three of the following.
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.

Again, we will ask WHAT it says in the court order. If it says that you will alternate years, with NO regard to arrearages, then, that is what can legally happen.

Now, if there are ANY restrictions in the court order that there can be no restrictions, the custodial parent MUST provide the 8332 for the NCP to claim the child.

 

[Stiper2]

Thanks for all that information, we have a new Stipulation and Agreement /Court Orderthat says if she is in arrears that she can not claim the child as a dependent. Yesterday, the IRS said as long as the child resided with me for at least 6 months out of the year I am the one who legally can claim the child this year.

 

[CJane]

Thanks for all that information, we have a new Stipulation and Agreement /Court Orderthat says if she is in arrears that she can not claim the child as a dependent. Yesterday, the IRS said as long as the child resided with me for at least 6 months out of the year I am the one who legally can claim the child this year.

Ok. IF she claimed the child against the court order - and we don't know if the order addresses FUTURE years or includes 2007 - but if it's new, I'm betting it only addresses future years, then she's in contempt but violated no IRS rules because the order (and presumably an 8332 filled out previously) allows her to claim the child. So you address THAT through the courts.

You can still claim your child if you really do have the right to do-so based on court order. BUT you'll have to file a paper return and include all of the relevant information for the IRS to prove you have the right to claim the child. The IRS will sort out who is supposed to get the deduction based on THEIR rules.

It'll take awhile though.

There's no quick fix for this and there's no 'law' or 'statute' or 'rule' or anything else that addresses the first issue you have which is whether or not she had the 'right' (given by the courts) to claim the child.

Whether she has the 'right' according to the IRS is a completely different issue.

 

[Stiper2]

Yes, The IRS said to go ahead and file the paper return, I have my Taxes done by H&R Block to back me up. They will see 2 people have filed the same dependent and will issue letters to the both of us and we will at that time have to prove whether we had the right to claim the child. Of course now it holds up my return due to the X filing it already electronically. I shoul d have known when I got an email from the X stating I would be getting her tax return this year for the arrearages that she was up to no good. Like I said before, this is old stuff for the IRS...My attorney had once showed me I believe it may have been a CO Statue in regards to arrears and the law who can claim or can not claim while in arrears. Because I had used it before when my x tried pulling this.