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  1. #1
    Join Date
    Jan 2011
    Location
    Athens, GA
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    1

    Default Child Tax Credit Rules with Divorce Decree

    Okay. This is an interesting case.
    A ex-husband and ex-wife have four children. In the decree of their divorce, ex-wife gives ex-husband the right to claim the children for Child Tax Credit from the IRS in exchange for his making a monthly child support payment.
    He pays child support for a while and all is fine, less than a year later, he is considered disabled due to heart disease, and thus absolved of all responsibility to support his children. The payments stop for the ex-wife, and she has not received money from him since.
    Now, 5 years later, the ex-husband has been consistently receiving a tax credit every year for all the children. He does not pay a child support payment, or in fact support the children in any way. They do not live with him for any part of the year, although occasionally the youngest will stay with him for a weekend. The elder 3 children are now college students and see their father only on holidays, and within the last year, the eldest 2 have become completely estranged from their father. Essentially, the father has no involvement at all with his children - emotionally, financially, etc. - but feels he is entitled to the tax credit because it is agreed upon in the divorce decree.
    His condition has improved enough that he has been able to be employed for the last 3 years, but still does not pay child support.

    This, to me, is atrociously wrong morally...a man taking money that is intended to supplement the money that he is supposed to have spent supporting children, and spending it on himself. Taking it out of the hands of his ex-wife who is the only means of financial support for the children.

    but does this man actually have a legal right to make the claim on his children? Surely, since he's not paying child support, that part of the divorce decree should be considered null and void.
    Furthermore, if this is the case - how does the ex-wife go about bringing this injustice to the attention of the IRS?

  2. #2
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
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    35,894

    Default Re: Child Tax Credit Rules with Divorce Decree

    If he's disabled, why weren't the children getting dependent benefits?

    You'll need to type word for word exactly what the decree actually says - I have a feeling that if there is specific wording relating to the tax situation, it would be along the lines of "must be current". Not "must pay at least something". Hence...if he has no current obligation, he's not obliged to pay anything AND he'd still be entitled to the deduction.

    So.

    What's the actual wording?

  3. #3
    Join Date
    Jul 2007
    Location
    Florida
    Posts
    2,344

    Default Re: Child Tax Credit Rules with Divorce Decree

    What income does this disabled person have that requires him to file a tax return? If someone doesn't like what is in their divorce decree then they can go back and petition the court to change it. Only a judge can change what another judge granted.

    However, if the divorce decree stated that he could claim the children only so long as he was current on his child support, then he would need to obtained a signed form 8332 from the custodial parent releasing her claim to the dependents in order to claim them himself. That's why the language is so important.

  4. #4
    Join Date
    Oct 2006
    Posts
    16,391

    Default Re: Child Tax Credit Rules with Divorce Decree

    Quote Quoting Dogmatique
    View Post
    If he's disabled, why weren't the children getting dependent benefits?

    You'll need to type word for word exactly what the decree actually says - I have a feeling that if there is specific wording relating to the tax situation, it would be along the lines of "must be current". Not "must pay at least something". Hence...if he has no current obligation, he's not obliged to pay anything AND he'd still be entitled to the deduction.

    So.

    What's the actual wording?
    I can see your point from a family law perspective, but from a tax law perspective this response is not accurate.

    This is a conditional order, and the IRS does not accept conditional orders in lieu of form 8332. Therefore the IRS would not honor his claim if mom also claimed the child. He could try to have her held in contempt in a court of family law, but I suspect that the end result would be that he would have to start paying child support again, or the judge would take the exemption away from him.

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