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Author: 5aaaaf Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 121095  
Subject: Divorce & tax issue Date: 3/11/1999 7:57 PM
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My divorce decree states that my x-husband gets to claim 2 children as a tax deduction for even years and 1 child on the odd years. He has never taken any of the children as tax deductions until last tax year. Consequently, I have taken all 3 children as deductions historically. I did not know he took 2 of the children last year until I received a letter from the IRS stating there was a duplicate return on 2 social security numbers. I called my tax person who told me he can not claim any of the children unless I sign the IRS form relinquishing the children or child to him. I called the IRS and told them that I had not relinquished the children and he was not justified in taking them. I received a phone call in Feb from my x-husband informing me he was going to take 1 child as a deduction. I had already filed my taxes and having not been informed by him in a timely fashion, I took all 3 children as deductions. He stated he was entitled to take 1 according to the divorce decree and we would just have to see what happened. What should I do now?
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Author: notatwork Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 11994 of 121095
Subject: Re: Divorce & tax issue Date: 3/11/1999 10:06 PM
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I think you need to check your divorce decree. If it says he can take exemptions without conditions (such as amount of child support), your ex-spouse may be entitled to take the child's exemption. But in all cases if both of you claim the child this year, your returns will be examined and you will both be required to show support for your claim.

Check out Publication 17, Your Federal Income Tax, page 29.

Be careful, sorry.

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Author: pauledst Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 12031 of 121095
Subject: Re: Divorce & tax issue Date: 3/12/1999 12:34 PM
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Read your decree carefully. Your case might be similar to mine. There was one child involved. I was the "noncustodial" spouse. Our decree specified my ex and I would alternately take the child deduction on our returns as long as my "child support" was current as of the end of the tax year. (I got even years, she had odd years) By the way, this is now in the past as my daughter is 21 and we have a good ongoing relationship.
The IRS however assumes the custodial parent has the right to the deduction unless specifically relinquishing it on an IRS form (8xxx) a copy of which is to be included with the noncustodial parents tax return. The noncustodial parent can go to court and force the custodial parent to sign the required form. If that is refused the judge can hold the refuser in contempt and impose a fine (or worse).
The net of it is, there is an agreement that both parties signed it in good faith. That is a large part of being Foolish. We don't always like what we agreed to but we live with ourselves for a lifetime and being of "good character" (honoring our agreements) is important for our self respect.


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Author: rjm1 Big red star, 1000 posts Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 12047 of 121095
Subject: Re: Divorce & tax issue Date: 3/12/1999 8:44 PM
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My divorce decree states that my x-husband gets to
claim 2 children as a tax deduction for even years
and 1 child on the odd years. He has never taken any
of the children as tax deductions until last tax year.
Consequently, I have taken all 3 children as
deductions historically. I did not know he took 2 of
the children last year until I received a letter from the
IRS stating there was a duplicate return on 2 social
security numbers. I called my tax person who to


Follow your agreement.

File an admended return for 1998.

I would not let a deduction go unclaimed. Therfore you and you x should discuss the deductions and if one is not going to claim the deduction allow the other to take the deduction.

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Author: 5aaaaf Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 12113 of 121095
Subject: Re: Divorce & tax issue Date: 3/13/1999 3:48 PM
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I just want to say "Thank you" to all the Fools who have responded to my dilemma. I have taken control of my own destiny. I read my decree and he was LEGALLY correct but MORALLY incorrect. I have ammended 2 years worth of tax returns and woooo is me!

Thanks again for your words of wisdom.

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Author: TMFTaxes Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 12180 of 121095
Subject: Re: Divorce & tax issue Date: 3/14/1999 11:56 PM
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[[My divorce decree states that my x-husband gets to claim 2 children as a tax
deduction for even years and 1 child on the odd years. He has never taken any
of the children as tax deductions until last tax year. Consequently, I have taken
all 3 children as deductions historically. I did not know he took 2 of the children
last year until I received a letter from the IRS stating there was a duplicate return
on 2 social security numbers. I called my tax person who told me he can not
claim any of the children unless I sign the IRS form relinquishing the children or
child to him.]]

If the kids live with you, that is basically correct, with a minor exception that I'll explain later). But, generally, the divorce decree "implies" that you will sign such form as long as he lives up to his end of the agreement (like paying child support). So if this is something that you agreed to, it would be expected that you would sign Form 8332, and give the dependent exemption to your ex.

[[ I called the IRS and told them that I had not relinquished the
children and he was not justified in taking them.]]

But isn't that what you AGREED to do??

[[ I received a phone call in Feb
from my x-husband informing me he was going to take 1 child as a deduction. I
had already filed my taxes and having not been informed by him in a timely
fashion, I took all 3 children as deductions.]]

But again, this should not have been a surprise to you. Didn't you agree to allowing him to have the dependents when you signed your divorce documents?

[[ He stated he was entitled to take 1
according to the divorce decree and we would just have to see what happened.
What should I do now?]]

Check with your attorney. But if your ex is living up to his end of the agreement, I would think that you would be expected to live up to your end of the deal.

Generally, the release of the dependent is predicated on the ex doing something (like paying child support on a timely basis). Again, if your ex has held up his end of the bargain, I believe that you'll be required to live up to yours. You attorney will be able to fill you in on this.

Finally, you should also know that if the divorce decree or agreement unconditionally allows the non-custodial parent (your ex) to claim the exemption, the non-custodial parent can attach an excerpt form the decree or agreement instead of Form 8332. So your "ex" may have you over a barrel anyway. But if any condition is placed on the exemption (such as the payment of child support), Form 8332 MUST be filed with the non-custodial return...even if the non-custodial parent has satisfied the condition.

So...check with your attorney for a clearer interpretation, or give your tax preparer a copy of your divorce decree to review and make a determiniation.

You can read more about this in IRS Publications 501 and 504 at the IRS web site.

TMF Taxes
Roy

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