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Subject:  Re: alimony/spousal support Date:  11/15/1999  5:14 PM
Author:  TMFTaxes Number:  21159 of 123142

<<I'd like to clarify the issue since the last answer is not entirely correct. It is not so definite, and there is a gray area. Further, the previous poster does not allow for any hope that a non-custodial parent can always sue the ex-spouse on a local level if an agreement regarding the dependent is violated.>>

You're right...the issue should most probably be clarified.

But rather than using Pub 17, let's use Publication 504...that deals with this issue directly.

First...the general I stated in my original post:

" Under the special rule, the parent who had custody of the child for the greater part of the year (the custodial parent) is generally treated as the parent who provided more than half the child's support. This parent is usually allowed to claim the exemption for the child, if the other dependency tests are met. However, see Noncustodial Parent, later.

Custody. Custody is usually determined by the most recent decree of divorce or separate maintenance, or a later custody decree. If there is no decree, use the written separation agreement.

If neither a decree nor an agreement establishes custody, then the parent who had physical custody of the child for the greater part of the year is considered the custodial parent. This also applies if a decree or agreement calls for "split" custody, or if the validity of a decree or agreement awarding custody is uncertain because of legal proceedings pending on the last day of the calendar year.

<< Although the IRS is tired of this issue, the IRS still does recognize explicitly written decrees.>>

But only if they are consistent with the issues. Pub 504 disusses those in the "non-custodial parent" section later on in the Publication. Let's take a look.

"Under the special rule, the parent who did not have custody, or who had it for the shorter time, is treated as the parent who provided more than half the child's support if:

1) The custodial parent signs Form 8332 or a similar statement agreeing not to claim the child's exemption, and the noncustodial parent attaches this statement to his or her return (see Form 8332, later)"

And this was the form that I was referring to when I stated that the custodial parent could sign away their rights to the dependent. Normally, the divorce decree allows that the non-custodial parent can claim the deduction (and the custodial parent will complete Form 8332) each year that support payments are current. It's a standard feature in most divorces. But the subject goes on...

" or

2) A decree or written agreement made before 1985 provides that the noncustodial parent can take the exemption and he or she gave at least $600 for the child's support during the year. This is true unless the pre-1985 decree or agreement was modified after 1984 to specify that this provision will not apply."

As was noted, written agreements still work as long as they were made BEFORE 1985. Because the law changed in 1986, the custodial parent became the "king" (or, more likely, the "queen" at that time). No more did IRS have to fight over the decree or any other agreements. They only had to determine who the custodial parent actually was. And that's basically what they are doing. In this case federal law will superseed any state requirements and regulations regarding support, exemptions, etc. The publication even provides an example (and note...THE EXAMPLE IS FOR 1984...WHICH WOULD BE A TAX YEAR BEFORE 1985...SO THIS IS NOT THE WAY THE LAW WORKS FOR AGREEMENTS SIGNED AFTER 1985)

"Example 1. Under your 1984 divorce decree, your former spouse has custody of your child. The decree states that you can claim the child's exemption. You provided $1,000 of your child's support during the year and your spouse provided the rest. You are considered to have provided over half the child's support, even if your former spouse gave more than $1,000."

See how it works for a "prior" agreement? Let's look at the example from the publication for a more current agre