Christian Posted June 21, 2016 Report Share Posted June 21, 2016 A married couple I have are now separated but their divorce is not final. The former wife lives at their home with two children who are both under the age of seventeen. He has decided to file mfs and yesterday informed me that the presiding judge has given him the right to claim the two children as dependents even though they live with their mother and without her agreement. I told him I would need to see the legal court order to that effect as I have never encountered this before. Have any of you encountered this before and is his assertion correct ? I cannot recall a situation in which a state judge can contravene IRS regulations especially in the absence of agreement between the former husband and wife. Quote Link to comment Share on other sites More sharing options...
Jack from Ohio Posted June 21, 2016 Report Share Posted June 21, 2016 The IRS will follow its established regulations concerning dependency, etc.. The county judge has no authority over what the IRS regs are nor how they are enforced. This has been standard IRS policy since 2008. You may want to consider terminating your relationship with both of them. Or, buy stock in Excedrin Company. 5 Quote Link to comment Share on other sites More sharing options...
Pacun Posted June 21, 2016 Report Share Posted June 21, 2016 If the father left the house before June 30th, last year and the children stayed with her maintained that house and was the main home for their children, she qualifies for HH regardless what the Judge says. 2 Quote Link to comment Share on other sites More sharing options...
Possi Posted June 21, 2016 Report Share Posted June 21, 2016 30 minutes ago, Pacun said: If the father left the house before June 30th, last year and the children stayed with her maintained that house and was the main home for their children, she qualifies for HH regardless what the Judge says. True... HH filing status in that case. In order to comply with the court order, she would have to sign over the exemption with the 8332. Without that form, I don't believe he can claim the children's exemptions even if he has the court order in his hand. Didn't the IRS get out of that legal battle years ago, and now accepts the 8332 exclusively? I have many clients doing that dance, and I follow up with the 8332s in every instance. It gives the exemption ONLY to the non-custodial parent and the custodial parent maintains the HH filing status. 3 Quote Link to comment Share on other sites More sharing options...
SaraEA Posted June 23, 2016 Report Share Posted June 23, 2016 The divorce decree originated in a civil court. The Internal Revenue Code is contained in Title 26 of the United States Code. The USC trumps civil courts, which means the IRS doesn't have to, and won't, abide by anything but what a federal court has to say. In your case, the IRC says only the mother whom the children live with can claim the exemptions unless she signs an 8332 stating she will not do so. The father can certainly take her back to civil court on contempt charges, but he'll have to win a signed 8332 to be able to claim them. I once had a couple who were divorced in October whose divorce decree stated they had to file jointly that year. I can only conclude the lawyers don't know tax law at all or don't attend to details (software produces most legal docs these days), and judges are too willing to accept what the lawyers agree to without paying attention. 6 Quote Link to comment Share on other sites More sharing options...
Catherine Posted June 23, 2016 Report Share Posted June 23, 2016 I could wish (were it of any avail) that lawyers who give tax advice were hit with the same penalties that we would get if we gave legal advice. Parity and fairness... 10 Quote Link to comment Share on other sites More sharing options...
easytax Posted June 23, 2016 Report Share Posted June 23, 2016 3 hours ago, Catherine said: I could wish (were it of any avail) that lawyers who give tax advice were hit with the same penalties that we would get if we gave legal advice. Parity and fairness... /s BUT THEY are God and can do everything ...... at least --- what their lobby says (maybe because they write the law wording too???) Sore spot for me as I do believe strongly in tax education and having to stay abreast/ahead of what changes ----- but attorneys only need to keep CE's etc. for attorney things and still get to be "ALL" to everyone and everything. (yes, a good attorney usually only does what they should/might have ACTUAL training to do --- BUT ALL get a pass on most else, because of them writing law, etc.) Hence we can not "legally" basically issue or do something attorneys have clerks do and do not really require knowledge or thought (no insult intended to clerks, etc.) but attorneys CAN state tax law even without actually knowing tax law, etc.. rant over --- have a GREAT day. 4 Quote Link to comment Share on other sites More sharing options...
Catherine Posted June 24, 2016 Report Share Posted June 24, 2016 19 hours ago, easytax said: at least --- what their lobby says (maybe because they write the law wording too??? and that is EXACTLY the problem! I share your rant. As do many of us here, most likely. Even (maybe even especially) those of us who also have law degrees and law licenses. The good lawyers I know are the ones who get the *most* frosted about mis-steps by other lawyers. 2 Quote Link to comment Share on other sites More sharing options...
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