Claiming dependents

[Janitor Bob]

I have not heard of this, but I have a client who is telling me that since her ex-husband is behind on child support, the husband cannot claim the kids as dependents.....Any truth to this?

[Chowdahead]

As far as I know, the IRS doesn't care about child support payments, and whether they are current or not. They simply care who the child resided with more than half the year, OR if one parent releases the exemption to the other parent by signing that particular form the IRS has for that purpose.

So if she is pissed at hubby for not paying support, and the child actually resided with her for more than half the year, she should fill out another one of those forms, revoking the exemption release (if it was a multiple year release).

Of course this may put her in contempt of court if she agreed to give him the exemption in their divorce decree, but the ex-husband is also most likely in contempt by not paying support anyway, so these things tend to cancel each other out in state courts.

But all of that has nothing to do with the IRS and the exemption.

[Pacun]

Actually... even if the non-custodial parent is current with child support payments, the custodial parent has to sign the form allowing the exemption for the non-custodial parent. So, the stament from the custodial parent "the husband cannot claim the kids as dependents because he is late with child support" IS VERY true because she will not sign the release.

We have a saying in spanish "With what face" will the father go to the judge and complained about the wife not signing the release form when he didn't pay child support ordered by a judge?

[Chowdahead]

Actually... even if the non-custodial parent is current with child support payments, the custodial parent has to sign the form allowing the exemption for the non-custodial parent. So, the stament from the custodial parent "the husband cannot claim the kids as dependents because he is late with child support" IS VERY true because she will not sign the release.

We have a saying in spanish "With what face" will the father go to the judge and complained about the wife not signing the release form when he didn't pay child support ordered by a judge?

You are correct, but many divorce decrees that I have seen actually include the signed IRS consent form for multiple years well in advance, until the child turns 18. Even if the divorce decree doesn't include the signed form, and the wife agreed in court to give the exemption in those years, and then subsequently doesn't, she is in contempt.

[Pacun]

You are correct, but many divorce decrees that I have seen actually include the signed IRS consent form for multiple years well in advance, until the child turns 18. Even if the divorce decree doesn't include the signed form, and the wife agreed in court to give the exemption in those years, and then subsequently doesn't, she is in contempt.

My brother asked his lawyer to get those forms signed for many years. Either the judge or the other attorney didn't want to do and it wasn't done. I thought that a smart lawyer will not make such a request because my brother has to hire her again each year if he wants his ex- to sign the form.

I believe this is done because the IRS rules or forms might change or because it doesn't make sense to sign a form today that will be used in 15 years. Many, many things could happen between now and 15 years. Child support in DC is 21 years.

As for contempt, let's say that a judge orders that until the child reaches 18 years of each, the mother will have the child from 8AM monday until 9PM of Fridays. The father should pick up the child every Friday, no later than 10PM. Do you think both parents will be in compliance 15 years later?

[grandmabee]

and IRS doesn't care what a state court says Federal law tops state devorce

[Chowdahead]

and IRS doesn't care what a state court says Federal law tops state devorce

Federal law does not top a binding court-sanctioned agreement between the two parties. It's easy to just throw out there "IRS doesn't care what state courts say".

If a person agrees in court to release the exemption for that year, and they reneg, then they are in violation of the agreement. If a person agrees to pay X amount of child support a month and they don't, then they are in violation of the agreement.

This has nothing to do with the IRS.

[Pacun]

Federal law does not top a binding court-sanctioned agreement between the two parties. It's easy to just throw out there "IRS doesn't care what state courts say".

If a person agrees in court to release the exemption for that year, and they reneg, then they are in violation of the agreement. If a person agrees to pay X amount of child support a month and they don't, then they are in violation of the agreement.

This has nothing to do with the IRS.

If there is no form signed by the custodial parent, and the child lived with the custodial parent for more than 6 months in 2010, the IRS does not care if the divorce court said that on even years the non custodial parent will claim the dependent. The IRS will not even use the tie breaker rule for for that year and give the exemption to the custodial parent. That's true even if the non-custodial parent has paid child support religiously.

[grandmabee]

Federal law does not top a binding court-sanctioned agreement between the two parties. It's easy to just throw out there "IRS doesn't care what state courts say".

If a person agrees in court to release the exemption for that year, and they reneg, then they are in violation of the agreement. If a person agrees to pay X amount of child support a month and they don't, then they are in violation of the agreement.

This has nothing to do with the IRS.

What I was saying is the IRS is not going to get involved with the devorce. If one party is in violation of the agreement then go back to court and let the court settle it. IRS is not going to let you take a deduction just because the devorce degree says you can if you don't meet the rules to take deduction