superdad438
recently joined
Reged: 04/01/10
Posts: 11
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I am in the process of getting divorced in Utah and in our mediation we agreed to and signed that we would file jointly. A few weeks later she went ahead and filed married filing separately for many reasons, but it ended up getting her a return she assumed was more than she would have gotten otherwise. She claimed 2 for dependency and listed all 4 so she could get the EIC for 3. Her income was less than $6000 so claiming the 2nd got zero benefit to her and removed my ability to claim the 3rd costing me $1250 less on my return. She gained $200 benefit for claiming the 1st child costing me $1250 again for a total difference of $2300 even if she would have just agreed to file separately like she wanted and claim 0 children so we could then split the $2300 difference I would have gotten from claiming them. I believe she could still amend her return and I could amend mine to make this change, but now H&R block is reluctant to push it as it would throw up a red flag for changing the children around for tax purposes yet it says in the Utah state legal documents that the part of the calculations they use to decide who gets to claim them officially is on who would get the financial benefit for claiming them. If there is no benefit, that parent will not claim them at all. How do I convince her to amend our returns so she can get free money when she's completely illogical?
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Avaya
Carpal \'Tunnel
Reged: 02/09/06
Posts: 9823
Loc: Arkansas
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IDK, but Utah doesn't get to decide how you file or who claims the children. The IRS decides that.
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Eternity is too long to be wrong.
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superdad438
recently joined
Reged: 04/01/10
Posts: 11
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Obviously you are wrong on some level as it is in Utah state code and is put into the divorce decree. I've already looked up state codes and if there is no financial benefit, that person does not claim the child if the other party would receive financial benefit. I may have to send that paper in if she decides to file differently than she was ordered to, but the state does get a say in the matter.
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Miranda
Carpal \'Tunnel
Reged: 06/02/05
Posts: 20822
Loc: North of Mexico
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Quote:
IDK, but Utah doesn't get to decide how you file or who claims the children. The IRS decides that.
God Gawd let it go. Courts OFTEN dictate who can or cannot claim kids. People are bound by their court orders.
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13.1...because I am only half crazy!
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Avaya
Carpal \'Tunnel
Reged: 02/09/06
Posts: 9823
Loc: Arkansas
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The Federal Government trumps State Government.
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Eternity is too long to be wrong.
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superdad438
recently joined
Reged: 04/01/10
Posts: 11
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The IRS will let you file whatever you want. It's the 2nd person that tries to claim the person that gets screwed unless there's documentation provided. If I have papers stating that we shoudl be filing a certain way, I can submit a paper return with those documents which they will then review to see if the other party filed incorrectly and then the first person's return will be audited or asked for more info before deciding what they will do. My GF's ex tried to claim her child and he had to amend his return because she has sole legal rights as well as physical.
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Miranda
Carpal \'Tunnel
Reged: 06/02/05
Posts: 20822
Loc: North of Mexico
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Quote:
The Federal Government trumps State Government.
People are bound to their court orders, not the federal government.
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13.1...because I am only half crazy!
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Avaya
Carpal \'Tunnel
Reged: 02/09/06
Posts: 9823
Loc: Arkansas
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Yeah, people think that until they go one on one with the IRS. The IRS isn't going to care what a state CO says. The laws are already written, IDK why local judges even bother.
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Eternity is too long to be wrong.
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Miranda
Carpal \'Tunnel
Reged: 06/02/05
Posts: 20822
Loc: North of Mexico
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Quote:
Yeah, people think that until they go one on one with the IRS. The IRS isn't going to care what a state CO says. The laws are already written, IDK why local judges even bother.
Why would they go one on one with the IRS when their court orders dictate who can do what? They would go back to family court.
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13.1...because I am only half crazy!
Edited by Miranda (04/07/10 12:38 PM)
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yngwies_guitar
journeyman
Reged: 01/11/10
Posts: 61
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This is from the 2010 Master Tax Guide from CCH with IRS code citations:
139A. Exemptions for Children of Divorced Parents. Generally, the dependency exemption for children of divorced taxpayers will go to the parent who has custody of the child for the greater part of the calendar year. The custodial parent, for tax years beginning after July 2, 2008, will be determined by the number of nights in which the child resided with the parent (Reg 1.152-4(d)(1)). When the child spends an equal amount of time with each parent, the parent with the higher adjusted gross income is allowed to claim the dependency exemption. This rule applies only if the child receives over one-half of his/her support from parents who are divorced, legally separated, or have lived apart for the last six months of the calendar year. In addition, the child must have been in the custody of one or both parents for more than one-half of the calendar year (Code Sec. 152(e)).
There are three exceptions to the rule that a custodial parent is entitled to the dependency exemption, namely:
(1) When there is a multiple support agreement that allows the qualifying child to be claimed as a dependent by a taxpayer other than the custodial parent.
(2) When the custodial parent of a dependent child transfers the right to claim the dependency exemption to the noncustodial parent by signing a written waiver (Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent). The waiver must be attached to the noncustodial parents' tax return. The parents do not need a written divorce decree or separation agreement containing the noncustodial parents' right to the exemption and the waiver does not need to be permanent (Reg 1.152-4(e)). The waiver may only be used by the noncustodial parent for purposes of claiming the child tax credit and dependency exemption (Notice 2006-86).
(3) When a pre-1985 divorce decree or separation agreement between the parents grants the exemption to the noncustodial parent and the non custodial parent provides at least $600 for the support of the child for the year in question.
When a parent is remarried, support received from the parent's spouse is treated as received from the parent (Code Sec. 152(d)(5)(B)).
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