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  1. #1
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    Default Who Can Claim the Child Tax Exemption After a Custody Order is Amended

    My question involves a child custody case from the State of: New Hampshire

    My ex and I have a parenting plan established in the court. This new parenting plan is a modification to the old parenting plan that we had established years ago. The old parenting plan established us to have a week-on-week off custody agreement with our child. No child support was ordered. Also we were to claim our child on our taxes as a dependent on odd and even years. we recently went to court and finally got the final decree from the judge...

    Child support was ordered and is being paid. Also our child legally resides with my ex Monday through Friday and is with me on the weekends. All other modifications that were requested or either modified or left the same. The new parenting plan and decree does not mention anything of the child being claimed on the taxes anymore. I asked my lawyer about it and they told me that because the judge didn't change anything when it came to that that the tax exemption was still to be followed as it was with the old parenting plan...

    Am I to understand that this is correct? Because the judge did not make any modification to that part of the original parenting plan that we are to still follow the odd-even years? Thanks for your help

  2. #2
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    Default Re: Who Can Claim the Child Tax Exemption After a Custody Order is Amended

    If your lawyer and your ex's lawyer both agree, and have both advised you that the prior provision remains in effect, and both of you follow the advice of counsel, then it shouldn't be an issue.

    If your ex and his lawyer take the position that the order is now silent, such that IRS rules govern who may claim the exemption, the big question is who is entitled to claim the exemptions under the IRS rules. If it's you, then that would work to your advantage, although it can create complications if both of you claim the exemption for the same tax year. If it's him, you should speak with your lawyer about seeking clarification from the court.

  3. #3
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    Default Re: Who Can Claim the Child Tax Exemption After a Custody Order is Amended

    Quote Quoting Mr. Knowitall
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    If your lawyer and your ex's lawyer both agree, and have both advised you that the prior provision remains in effect, and both of you follow the advice of counsel, then it shouldn't be an issue.

    If your ex and his lawyer take the position that the order is now silent, such that IRS rules govern who may claim the exemption, the big question is who is entitled to claim the exemptions under the IRS rules. If it's you, then that would work to your advantage, although it can create complications if both of you claim the exemption for the same tax year. If it's him, you should speak with your lawyer about seeking clarification from the court.
    The IRS rules matter no matter what the two attorneys agree upon.

    Adam, under the IRS rules (federal law) the only person entitled to claim the child and any of the child's tax attributes, in your scenario, is the custodial parent. Under the IRS's definition of custodial parent that is the person who has the child at their home the most overnights in the year.

    The other parent can only claim tax attributes for the child IF the custodial parent gives them a signed form 8332 relinquishing the exemption, and any attributes that go with the exemption. The other parent MAY NOT claim EITC or daycare credits...there is no exception to that.

    Therefore, if your order stands as it was previously, then you will need to get a signed form 8332 from the ex for the years that you are entitled, under the court order, to claim the child.

  4. #4
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    Default Re: Who Can Claim the Child Tax Exemption After a Custody Order is Amended

    Quote Quoting llworking
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    The IRS rules matter no matter what the two attorneys agree upon.
    The IRS rules matter, but the court can enforce its judgment -- so if a parent who is entitled to the deduction claims it in violation of the family court order, even if the IRS holds that to be proper, the family court can impose sanctions or hold that parent in contempt. Be careful when you split hairs that you don't inadvertently lead people into making big mistakes.

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