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    Question 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    I am currently in process of attempting to get a 13 year old court ordered changed, however I started it in March of 2008 hoping to get the order to give me the right to claim my daughter since she resides with me and hardly sees her father, however it has taken all year just to transfer the paperwork across state lines. For years I have asked him to let me claim her and he refuses, however with the new laws in place and me not having signed over the right, as well as the original court paperwork not stating a time limit, can I claim her? I am willing to take the risk to get audited, because I am pretty sure I will win, but if I automatically lose because of the old court papers, then I won't. Thanks for any advice.

    Currently I reside Indiana, he resides in Illinois.

  2. #2
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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    If your husband has a divorce decree granting him the dependent exemption for the child unconditionally then there is nothing you can do to prevent him from claiming the child, and if you also claim the child you will be required to pay back the excess refund or tax benefit you received for claiming a child you were not legally entitled to claim. Length of time won't matter, but the child will cease to qualify due to other rules at some point.

    If the divorce decree grants him the exemption conditionally - for example, so long as he is current on his child support payments - then he would need to obtain from you a signed form 8332 in order to claim the exemption. If you refused, he could get a judge to order you to sign off on the exemption if he has complied with the child support requirement.

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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    Quote Quoting Bubba Jimmy
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    If your husband has a divorce decree granting him the dependent exemption for the child unconditionally then there is nothing you can do to prevent him from claiming the child, and if you also claim the child you will be required to pay back the excess refund or tax benefit you received for claiming a child you were not legally entitled to claim. Length of time won't matter, but the child will cease to qualify due to other rules at some point.

    If the divorce decree grants him the exemption conditionally - for example, so long as he is current on his child support payments - then he would need to obtain from you a signed form 8332 in order to claim the exemption. If you refused, he could get a judge to order you to sign off on the exemption if he has complied with the child support requirement.
    Not true anymore Bubba....

    As of 2009 (for the 2009 tax season) the IRA will no longer accept court orders, at all, as substitutes for form 8332. The IRS will only accept form 8332 or a substitute for form 8332 that is independent of any court order.

    Therefore, the IRS will not make her pay back any refund if she is the custodial parent, for 2009 forward.

    Of course, she would still have to deal with the state court judge, if dad took her to court for contempt for claiming the child.

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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    Sorry to disagree, but page 28 of IRS Publication 17 states:

    "If the divorce decree or separation agreement went into effect after 1984, the noncustodial parent can attach certain pages from the decree or agreement instead of Form 8332."

    The provision you describe is for TY2009, which will be filed in 2010 but I believe this question relates to 2008 tax returns.

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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    Quote Quoting Bubba Jimmy
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    Sorry to disagree, but page 28 of IRS Publication 17 states:

    "If the divorce decree or separation agreement went into effect after 1984, the noncustodial parent can attach certain pages from the decree or agreement instead of Form 8332."

    The provision you describe is for TY2009, which will be filed in 2010 but I believe this question relates to 2008 tax returns.
    That's what I said...for the 2009 tax reason. I was giving you a "heads up".

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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    Okay. In the circles I travel, the "2009 tax season" is thought of as being right now when 2008 returns are being prepared. It sounded like you were disagreeing with the advice I had given for the question asked. Sorry for the misunderstanding.

  7. #7
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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    Quote Quoting Bubba Jimmy
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    Okay. In the circles I travel, the "2009 tax season" is thought of as being right now when 2008 returns are being prepared. It sounded like you were disagreeing with the advice I had given for the question asked. Sorry for the misunderstanding.
    Ah...in my circles the tax season refers to the tax year in question, not the year when the filing takes place...I see how the confusion happened.

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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    The IRS calls the current tax season we are in the "2009 tax season", a time when we are preparing 2008 tax returns. See http://www.irs.gov/newsroom/article/...202244,00.html

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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    I posted a similar question yesterday regarding my ex and I alternating tax years for the exemption of our daughter. She is pregnant and living with me full time since her dad has basically disowned her. I have asked her father if he would allow me to claim her since he is not providing support to her. He has declined. It sounds like what you have posted here that I will be ABLE to claim her as an exemption (given the circumstances) despite the court order that 2009 tax year be her father's. Is that what I understand from your posts?

  10. #10
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    Default Re: 13 Year Old Court Order Gives Him the Tax Exemption, Can I Trump It with New Laws

    He will not be able to claim her next January when he files his 2009 tax return unless you sign form 8332 agreeing not to claim the exemption. If a court order grants him the right to claim the exemption and you refuse to sign form 8332 you could be found in contempt if he decided to go back to court to ask the court to enforce its original order. You would do better to get the order changed based on the facts and circumstances, in my opinion.

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