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  1. #1
    Join Date
    Jun 2017
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    25

    Smile How to Change Which Parent Can Claim a Deduction for the Children

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

    My Ex-wife and I divorced in 2011 and in 2016 she decided to try and move out of state and take my son with her without approval. Needless to say this started a long 2 year court battle between us and I now have my son full-time! She has visitation every other weekend and during the summer when he is out of school, but he lives with me full-time.

    With this said, In our Divorce Judgement, it states that we would alternate years with who got to claim him on their taxes as the dependent. This was fine for the first 4-5 years because we both had him a similar amount of time, however, now I have him full-time and yet she still gets to claim him every other year per our old agreement. Well this is just not right as I know her claiming him helps her get back a few thousand on her taxes when in reality I need that extra money. Its not right she can claim him and yet he doesn't even live with her and shes not the one that takes care of him full-time.

    So the question is.....How can I change this? Can it be changed just in a motion to the Court? Would it have to go to a hearing? Could it be an Emergency Motion?

    Any help would be appreciated!

  2. #2
    Join Date
    Sep 2010
    Posts
    19,378

    Default Re: Tax Season with Children

    The first question is whether any of this matters under the new tax law. There's no dependent exemption anymore. There's nothing the divorce judgment or subsequent custody action can do to change the filing status. If you have the child as a qualifying child, you can claim your head of household even if you allow her to take him as a dependent. On her side, she doesn't get anything out of it either. She can't claim head of the household and if she's not paying child care she can't take that credit.

    As far as the IRS is concerned, the child is your qualifying child and dependent. They won't get involved in this.

    If your wife wants to go back to the court and claim that you need to give her the 8332, let her. Or just give it to her. I'm not seeing how it makes any difference anymore.

  3. #3
    Join Date
    Oct 2006
    Posts
    15,893

    Default Re: Tax Season with Children

    Quote Quoting Breezy70
    View Post
    My question involves a child custody case from the State of: FLORIDA

    My Ex-wife and I divorced in 2011 and in 2016 she decided to try and move out of state and take my son with her without approval. Needless to say this started a long 2 year court battle between us and I now have my son full-time! She has visitation every other weekend and during the summer when he is out of school, but he lives with me full-time.

    With this said, In our Divorce Judgement, it states that we would alternate years with who got to claim him on their taxes as the dependent. This was fine for the first 4-5 years because we both had him a similar amount of time, however, now I have him full-time and yet she still gets to claim him every other year per our old agreement. Well this is just not right as I know her claiming him helps her get back a few thousand on her taxes when in reality I need that extra money. Its not right she can claim him and yet he doesn't even live with her and shes not the one that takes care of him full-time.

    So the question is.....How can I change this? Can it be changed just in a motion to the Court? Would it have to go to a hearing? Could it be an Emergency Motion?

    Any help would be appreciated!
    It is the norm for courts to allow the non-custodial parent to claim the child(ren) 1/2 of the time for tax purposes. You are not likely to get that changed.

    However, in the case of divorced or separated parents you can both claim the children for some attributes, even if she claims the child for the child tax credit (she is NOT allowed to claim the child for Earned Income Credit purposes, a state court cannot give her that right, ever).

    You can still claim the child for head of household purposes, EIC purposes (should you qualify for EIC) and for daycare credit purposes.

    Quote Quoting flyingron
    View Post
    The first question is whether any of this matters under the new tax law. There's no dependent exemption anymore. There's nothing the divorce judgment or subsequent custody action can do to change the filing status. If you have the child as a qualifying child, you can claim your head of household even if you allow her to take him as a dependent. On her side, she doesn't get anything out of it either. She can't claim head of the household and if she's not paying child care she can't take that credit.

    As far as the IRS is concerned, the child is your qualifying child and dependent. They won't get involved in this.

    If your wife wants to go back to the court and claim that you need to give her the 8332, let her. Or just give it to her. I'm not seeing how it makes any difference anymore.
    You are forgetting the child tax credit. That can still be claimed by the non-custodial parent.

  4. #4
    Join Date
    Jun 2017
    Posts
    25

    Default Re: Tax Season with Children

    I know the tax laws changed a bit, but at the same time, I dont think I can just go against a court final judgement. It just isnt right that she gets to claim him at all especially when he lives with me full-time and I am the one that pays everything for him.

  5. #5
    Join Date
    Oct 2006
    Posts
    15,893

    Default Re: Tax Season with Children

    Quote Quoting Breezy70
    View Post
    I know the tax laws changed a bit, but at the same time, I dont think I can just go against a court final judgement. It just isnt right that she gets to claim him at all especially when he lives with me full-time and I am the one that pays everything for him.
    I am not suggesting that you go against a court final order. A non custodial parent has only ever been able to claim the exemption for the child and the child tax credit (also the education credit for college aged children). They were never allowed to claim HOH status, or EIC or daycare credits. A judge does not have the authority to give them permission to do so.

    Now that the laws have changed and the exemption has been eliminated the non-custodial parent can only claim the child tax credit. (and possibly an education credit). You are still able to claim the child for Head of Household purposes, EIC and daycare credits. The custodial parent has always had the right to do that.

  6. #6
    Join Date
    Jun 2017
    Posts
    25

    Default Re: Tax Season with Children

    How do you go about changing the existing divorce judgement? Is there a certain form to file? A certain Motion to file?

    It's not right that my ex can get money for our son when I have him 85% of the year

  7. #7
    Join Date
    Oct 2006
    Posts
    15,893

    Default Re: Tax Season with Children

    Quote Quoting Breezy70
    View Post
    How do you go about changing the existing divorce judgement? Is there a certain form to file? A certain Motion to file?

    It's not right that my ex can get money for our son when I have him 85% of the year

    Dad, if she is paying child support you are never going to be able to get the order changed. If she is not paying child support you would be better off getting a child support order rather than trying to change that.

  8. #8
    Join Date
    Mar 2016
    Posts
    2,289

    Default Re: Tax Season with Children

    Quote Quoting Breezy70
    View Post
    How do you go about changing the existing divorce judgement? Is there a certain form to file? A certain Motion to file?

    It's not right that my ex can get money for our son when I have him 85% of the year
    You file a modification in court. Find a local family law attorney who can help you.

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