Another question regarding divorce decrees

[ajuroff]

There has been discussion that the IRS does not care about any divorce decree, stating "mom" can

claim child every even year and "dad" can claim child every odd year, and so on.

This divorce decree states:

The Plaintiff, (client name), shall have the right to claim the minor child for tax purposes.

The parties agree to cooperate with the opposite party and sign any forms which are necessary

(currently IRS form 8332), or be subject to the contempt powers of this Court upon their

failure to do so.

Mom will not cooperate and refuses to sign the 8332. Client wants to go forward and claim the child

and attach the divorce decree. Mom has already filed and claimed the child.

Not sure if this is going to fly or not. I think the only thing he can do is take her back to

court about her refusal to sign the 8332.

Any thoughts?

[Kea]

I'm no expert on divorce decrees. But as I understand it there is some difference between divorces before and after 1/1/2009. If prior to 2009, you can attach the divorce decree rather than the 8332. (If I remember correctly.)

[Lion EA]

He can file on paper and expect an IRS letter. In the meantime, yes he can take wife back to court for contempt and see if the judge directs her to sign Form 8332 listing all the applicable years.

[Pacun]

He can file on paper and expect an IRS letter. In the meantime, yes he can take wife back to court for contempt and see if the judge directs her to sign Form 8332 listing all the applicable years.

This sounds good but make sure that he is not behind with his child support and/or alimony payments.

[jainen]

>>Mom will not cooperate and refuses to sign the 8332.<<

The divorce decree only says Mom has to cooperate, not that she has to take any specific action such as releasing the exemption. Anyway, one of the easiest ways to get around that is to arrange for at least 50% of the child's support to come from third parties such as the new boyfriend. In that case the 8332 is not only not necessary, but not even legal. Can your client prove that such support does not exist? Or suppose Mom arranges for the child to stay with Grandma a lot, so is not a qualifying child living with Mom more than half the year. Then she can cooperate by demanding Dad sign any forms necessary (like monthly checks) to pony up more than half the total support, which is the only way he could claim a qualifying relative--and HE will have to cooperate or face contempt charges!

[Lion EA]

Wrong, Jainen, it says

agree to cooperate with the opposite party and sign any forms which are necessary

(currently IRS form 8332), or be subject to the contempt powers of this Court upon their

failure to do so.

[ajuroff]

>>Mom will not cooperate and refuses to sign the 8332.<<

The divorce decree only says Mom has to cooperate, not that she has to take any specific action such as releasing the exemption. Anyway, one of the easiest ways to get around that is to arrange for at least 50% of the child's support to come from third parties such as the new boyfriend. In that case the 8332 is not only not necessary, but not even legal. Can your client prove that such support does not exist? Or suppose Mom arranges for the child to stay with Grandma a lot, so is not a qualifying child living with Mom more than half the year. Then she can cooperate by demanding Dad sign any forms necessary (like monthly checks) to pony up more than half the total support, which is the only way he could claim a qualifying relative--and HE will have to cooperate or face contempt charges!

Jainen - sometimes things ARE as they ARE. You are creating ideas and situations when, well, this is a simple "it is what it is". I don't understand when you stated "one of the easiest ways to get around that is to arrange for at least 50% of the child's support to come from third parties such as the new boyfriend". Where did that come from? I never mentioned a new boyfriend. And I never said Dad was behind on any child support. All is up to date. My question was in regards to what the divorce decree stated.

The Plaintiff, (client name), shall have the right to claim the minor child for tax purposes.

The parties agree to cooperate with the opposite party and sign any forms which are necessary

(currently IRS form 8332), or be subject to the contempt powers of this Court upon their

failure to do so.

I think him taking her to court and having a Judge mandate that she sign the 8332 listing all the

applicable years is a good idea.

Thanks to everyone who helped.

[grandmabee]

Jainen - sometimes things ARE as they ARE. You are creating ideas and situations when, well, this is a simple "it is what it is". I don't understand when you stated "one of the easiest ways to get around that is to arrange for at least 50% of the child's support to come from third parties such as the new boyfriend". Where did that come from? I never mentioned a new boyfriend. And I never said Dad was behind on any child support. All is up to date. My question was in regards to what the divorce decree stated.

The Plaintiff, (client name), shall have the right to claim the minor child for tax purposes.

The parties agree to cooperate with the opposite party and sign any forms which are necessary

(currently IRS form 8332), or be subject to the contempt powers of this Court upon their

failure to do so.

I think him taking her to court and having a Judge mandate that she sign the 8332 listing all the

applicable years is a good idea.

Thanks to everyone who helped.

but still, this is a state court matter. if she will not sign the 8332 then he cannot claim the child and does not qualify to claim the child. custodial parent does. his only choice is contempt of court. take her to court for the amount of money he losses for not claiming child.

[jainen]

>>Where did that come from? <<

It came from the fact that if he goes back to court he will have to PROVE that the two parents provide more than half the child's support and the child lives with one or both of them more than half time. Otherwise she has no obligation to sign the 8332. And proving that will be very difficult if a friend or relative is helping with either time or money. He can't force her to release the exemption if she is not eligible to do so.

I suggest you stop quoting that divorce decree and see what genuine documentation you can find. The court order has a loophole big enough to drive a schoolbus through.

[kcjenkins]

And, of course, the other problem is that it may well cost him as much in attorney fees to take her back to court as the exemption would give him. It's not like he gets HOH or anything more than the dependency by claiming the child if she did sign the 8332.

[jklcpa]

And, of course, the other problem is that it may well cost him as much in attorney fees to take her back to court as the exemption would give him. It's not like he gets HOH or anything more than the dependency by claiming the child if she did sign the 8332.

Not entirely true. The education credits, if any, go to the taxpayer claiming the dependent, regardless who foots the bill for the tuition.

[Gail in Virginia]

But remember, even if they go back to court and she signs an 8332 listing all the applicable years between now and when the child is 24, she can turn around and repudiate those future years later.

[Lion EA]

How much he wants to spend going to court and how much she wants to spend is between them and their lawyers. We tell him what he can and cannot claim on his return based on which documents he does or doesn't have. If the child is young, it could be a lot of money over the years. He'll have to make his own decisions on the legal issues based on his whole picture. We can tell him the tax part of the information he needs.

[jainen]

>>We can tell him the tax part<<

Here in California we run into this a lot, often with some pretty interesting variations. I can't recall any time when the tax part was the real issue.

This is obvious to me in the original post, which reeks of the assumption that the relationship described in the divorce decree supercedes the tax code. But clients (and preparers who identify with their clients) hear what they want to hear. So go back to court. Insist that child support is up to date. Demand the exemption be released. And keep whining about contempt of court.

It won't work. If the kid spent summer at Grandma's, that trumps everything.

[kcjenkins]

In many cases, if he does go back to court, the smartest thing he can ask the Judge to do is to adjust the child support down a bit to offset the lost tax benefit. Because even if the Judge threatens to jail her for contempt, an unlikely outcome, she can sign the papers then rescind them anyway. The deck is stacked against him and he might as well understand that now. Of course, the best thing he could do is go out of his way to get along with the mother of his child. [Even if she is Cruella's daughter.] But, hey, emotion is seldom a reasonable thing, right?

[joelgilb]

A lot of mixed advice here. All good too.

There are multiple legal issues here Tax Law issues and Family Law/Divorce Law issues which are the responsibility of the the Divorce Court, not IRS.

As stated above, current Tax Law creates an exception to the custody and support issues by allowing a custodial parent ot transfer the right to claim an exemption by signing the 8332.

Not only am I a Lawyer, I have fought this very battle for myself and won (albeit with representation from a Family Law Attorney) . The Divorce Court, most certainly has control of the parties Judgment for Dissolution, Child Support Orders (a decree which is modifiable by the way)and the related issues connected with these decrees. Each State is different and it is up to the Court to determine whether it is appropriate to enforce an order forcing a spouse to sign the 8332, to meet the terms of there Judgment for Dissolution. Not IRS!

Now I am not a Family Law Attorney, so my advice is to tell your client to talk to their divorce attorney and see if they can get a Judge to write an order directing the ex-spouse to sign the 8332. And then if the order is issues and the ex-spouse still refuses, they could be held in contempt of Court and sent to jail until they comply. But it is not for us, myself included, to give legal advice in this area.