26 answers

Taxes and 50/50 Custody

My childs father and I share 50/50 custody of our daughter, but he claimed her on his taxes for three of the 4 years we've had her. Our original agreement was that we would take turns filing every other year. But the second time it was my year to file he said he had her two more days then I did the past year so therefore he had her more then half the year and tough luck for me. As a broke single mom in college at that time, that was a huge blow for me. Now again he is saying we can just take turns filing every other year, but I'm afraid he will change his mind if he sees he had her one extra day. What are the steps to writing up a legal agreement and will that take care of the problem? Thanks.

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Thank you for the advice everyone. I did file my taxes first this year and reminded him that we need to get something notarized. I can't afford to do much more then get the piece of paper signed and notarized, so i will start with that. Thanks again!!

J.

Featured Answers

You can write out what the agreement is and then have it notorized by a legal Notary. This is a binding agreement so if you have this and he changes his mind again, you have proof of the agreement and he would be breaking the "contract".
Good luck.

More Answers

I am not exactly sure on how you make it legal but I am just voiceing my opinion. It is wrong of him to do that to you. What if it was his turn to claim her and you were the one with the extra day or days. You should get it in writing from him that one of you will get her in even years and the other in odd years. I would get it notarized and call the courthouse and find out where to file it. Actually call them first and find out what will be sufficient. I am sorry he did that to you. Fell free to write me back.

P.

my advice...get it in writing and have it notorized!!!!

i am a single wokring mother of two. i have 50/50 custody with my youngest and i claim the earned income for him but his father claims the childtax credit. It is how our child support papers were drawn up by his lawyer. Although at first i did disagree,I didnt' really understand the whole deal, but it does work. I would recommend that you most definately need to contact a lawyer or your local child support division and realize that even tax breaks are considered in child support calculations. Good luck with it all.
Just a note that filing first isnt how the IRS takes it, if he pushes it, and he makes more money than you, you will have to pay back any credit from the irs, Trust me, i had that same notion once. I hope however things work in your favor.

J., I have been divorced for 7 years. In my divorce decree it states I claim my son every odd and he claims him every even. My accountant has a copy of my divorce decree with our taxes. It doesn't matter how much you or your ex sees the child. Talk to the attorney that did your divorce. READ your divorce decree again, if it does not state exactly that unless you get your child so many days you can claim them, then he is wrong. Make a copy of what it says and give it to him as a reminder. Claim your child on the years you are suppose to and don't worry about what he is doing. He will be the one that gets in trouble not YOU! Good luck and stay strong! Don't let him push you around. Especially after you are married. --H. (now married mother of 4)

It's tough because the law says that the exemption goes to the custodial parent and it can come down to just a matter of days. However, the custodial parent can sign the exemption over to the other parent with Form 8332. In your case, if you can agree that you're the custodial parent, then he can sign the form each year that it's suppose to be your deduction or there's a line for future years. I would recommend that you get him to sign it for "all future even-numbered years (or odd-numbered if that's what it is.) Then you keep that form and file a copy of it with your tax return in the appropriate years. If you e-file, then just hang on to the copy with your records for that year. If he claims the exemption when he's not suppose to, then you claim it as well. The IRS will send you both a letter, but you can produce the form as evidence for your side.

Good luck.
S.

Everyone else seems to read it that you were married and have a divorce decree. I read it as the two of you were never married, and therefore, you don't have the benefit of a divorce decree. Either way, I would still have him sign the IRS Form 8332 signing the exemption over to you every other year. Filing first gets you the efiling and the refund first, but he can still file a paper return and claim the exemption, resulting in an IRS letter for both of you, with you having to pay back your refund with interest if you lose. Keep your calendar, meanwhile, marking off the days (and hours if necessary) that you had your child with you. The IRS puts a lot of emphasis on contemporary written records as proof. The form is the best way to reduce arguments. Call me at Gallatin Valley Tax, ###-###-####, if you have more questions.

S.

**Edit** Sorry Ladies... but Ive been there! One day WILL make the difference in tax filing and any judge will tell you so! Unless the custody order specifically states that you alternate years, the IRS law stands, even if it seems unfair. Your only guarantee is to get an agreement signed or take him to court!

First I have to say please don't substitute this site for real legal advice. You need an attorney. You'll have to file a motion to amend the original custody order to include addressing the tax issue. It's not likely the court will even hear the issue because taxes are already addressed in IRS tax law. The parent who had the child the majority of the year is lawfully entitled to claim her, even if it is by one day! That said, if you have the right to claim her this year and he claims her as well, the duplicate SS# will flag the IRS's system and they will contact you both to prove your case. There may not be much you can do except pleading your caseto your ex and hoping he will stick to his agreement!

Good luck!
L.

My question is this is...Does the court order say you alternate years? If so then it really won't matter who had her more. If it states otherwise then he would be right. Go find a lawyer to have the matter fixed so that way there is no more conflict, cause in the end depending on a calander year he may always have her more. Lacy is also right, but do you want to take the chance?

Hello J.,

This is not formal legal advice, but I too share custody of kids and had to deal with the tax claiming issue. Luckily, we wrote it into our custody agreement the first go=round.

I think you should start by getting him to write it out/sign a statement for your plan and have it notarized. Then, you could probably get that added to your formal agreement just by sending it to the lawyers who handled things the first time. I'm not sure you'd need anything more fancy than that, as it's a pretty simple agreement. Since you've had problems with his compliance, you may want to spell out which years each of you gets to make the claim and consider if anything will change if the child goes to college.

Good luck

L. Zeman

You can write out what the agreement is and then have it notorized by a legal Notary. This is a binding agreement so if you have this and he changes his mind again, you have proof of the agreement and he would be breaking the "contract".
Good luck.

I'm having the same problem wiht my ex. Outside of taking him to court, I'm not sure what to do. I did have a friend suggest getting your taxes done first and claiming. That way he's not able to. Good luck to you!

I had the same thing happen to me only he would just file first before I had the chance to. I actually was at court for a different matter (custody since he moved away) and I told the judge that I wanted to be able to claim our son on my taxes. The judge said that I could claim him for I think 2 or 3 years since my ex husband claimed him for 10 years at the point and then it would go to an every other year thing. I'm sure that you could just call the courts or friend of the court and find out what you would have to do exactly.

Bear in mind, I am a non-attorney...

I would urge to you to compel your ex-husband to abide by your Decree of Dissolution of Marriage. The Decree clearly sets out the terms of filing. Generally, one party files on the even numbered year and the other party files in the odd numberd year. Off the cuff, I think your ex-husband may be confusing Child Support Guidelines (the document that sets out the number of days, child support awards, if any, etc.) with his ability to manipulate number of days in order to get the tax benefit. Read your Decree. Prevail on him to follow the Decree.

After reading some of the responses directing you to contact an attorney, I would suggest you ask an attorney's secretary or staff person for direction, strictly 'off-the-record.' In some cases, they will throw you a life-line.

If you file a legal agreement to claim her every other year it won't matter if he tries to claim her or not. All you have to do is send this to the IRS and they will keep that on file. I didn't realize that we could claim my stepson every other year until 3years after we were married. My husband assumed that he couldn't claim him anymore because he paid support. Which is not true. The last result would be go to court over it and get it put in writing. Make it official. By the way it won't matter if he had her one extra day if it's in writing.

I have joint custody with my ex with our 3 kids, once your child is in school, who's going to have her the most? probably you. You should be the one claiming for her, not him. My advice to you is write up an agreement between the 2 of you and take it to a commissioner of oath and get it notarize and that way it's legal.Here in Canada you can do this at any court house, not sure about the states.

T.

Your court divorce papers are THAT legal document. You could technically take him to court for contempt of court for him not taking turns on the tax filing. If it is not stated in your divorce papers that tax filing will depend on who has her the most days of the year and just states that you will switch every year, then he is in contempt and can get in trouble for that. I would call a lawyer and just get an initial consultation and see what they say. Typically an initial consultation is free. I know from being a single parent it is tough to afford a lawyer, but calling one and asking, even if only over the phone, shouldn't cost anything.
I see you filed your taxes first this year and good for you!! THAT is another way to beat him at this game he is playing.

J.,

Get to a lawyer and quick. If you have 50/50 custody, he should not have taken her off his taxes on the "off" years. Double check with a lawyer. He may owe you some money as well as the IRS!

L. :)

If your most current agreement states that you alternate years to claim her, then it doesn't matter who has her more during the year. What you can do is get your ex to sign form 8332 (go to the irs.gov website, its a tax form).
You can have him sign it each year that you claim OR you can fill in part 2 of the form which lists future years he agrees not to claim. See the instructions for the form to use it as it pertains to your situation.

I agree, don't take this site as legal advice, but I can tell you from experience that my husband does not have his daughter anywhere near 50% of the time (weekends only and one night a week) but he always claims her every other year on our tax returns.
Good luck!

If you are supposed to alternate years this should be stated in your divorce decree and you need to consult your attorney about the breach of contact on his part. I don't know how it works in 50/50 cases, but there is a form called Tax Assignment for minors that one parents signs authorizing the other to claim the minor child for that year. I have never had to do this because my decree stated that my ex would never be able to claim our daughter on his taxes. It should specify in your decree something similar to a parental agreement like "in even years the father claims the child and in odd years the mother claims the child." This may be a costly legal issue for you, but it sounds as if he may be breaking the law and the government doesn't take tax issues lightly. It may also benefit you monetarily to get the issue addressed before any more time passes!
Good luck and God Bless! E.

Get a lawyer and get it documented in the courts. Without the court order, you really don't have any leverage. And, before you say it's too much - it will save you in the long run...believe me! My husband waived past due child support (totaling $25,000) and since then, we've regretted it - but have never made any decisions without one again. If money is tight, there are non-profit lawyers that are available.

Hi J.,
I just went through this (not exactly the same as you) When I got divorced. First of all which one of you the primary parent in your custody agreement, that is usually the person who gets to claim the Dependant. My ex and I have Joint custody, but I am the primary parent. I fought really hard to have that happen. Second, you absolutely need to have a legal agreement or there is no way to hold him to it. My advice, although not cheap is to hire a lawyer. That is the best way to have papers drawn up, they know all the laws, and how to make it benefit you. I would not try to do it yourself, you will never work it out. I hope you do work it out, and get what you want in this. I know how hard it is to be a single mom and go to school at the same time, and how bad it sucks to be broke all the time, good luck.
A.

Hi J.,
You already have a legal agreement - your divorce decree. I live in Wisconsin and have gone through this. The divorce papers are legally binding and if it states you get to claim every other year it doesn't matter who had her more time. The only thing that would be considered for is with child support and they go by percent of time not actual day by day counts because that would be impossible to prove unless he had you sign her in and out every time she changed hands with a witness signature too. And yes even with 50/50 visitation agreements you can assess child support if the income of the parents is different. (it doesn't even have to be much different) I suggest finding a tax preparer to do the taxes for you not trying to do them on your own and give him copies of your divorce decree. If your ex claims her too the IRS will send you letters (mini audit) to determine who is correct and with my tax preparer he would handle responding to the IRS for me. The one determined to be incorrect will have to adjust taxes and possible pay penalties. A good tax preparer will probably ecourage you to restate the prior year and get the money you should have gotten then too. (if you want to spend a little money I think H&R block goes back 5 yrs if you bring them the statements to find you additional returns) Don't let him push you around stand up for your rights! And it is easy when you do have paperwork to prove you are right and for a little money you could have an accountant to back you up too. Good Luck!

J., in Your Court District building, there is an office of Victim Services. They do not charge any money. Whichever way you look at it, you ARE a victim. Even if You think you are not,there are always very caring people at work, and they will definitely give you some wise advice. There are many occasions when instead of needing to hire a lawyer (which I understand you do not have money for anyway), they provide help for free.
Good luck to you, and please do not wait till the last moment, find the phone, and call them NOW, and go from there.
You need to get a firm ground on this year's taxes, BEFORE your ex will come up with the next trick!!!

Talk to your lawyer. You may have to draw up a legal document or take him to court to make him uphold his end of the deal.

J.,

Each state is different. As someone who has gone through the support/visitation/taxes thing for 16 years (ends in June thankfully), this is my advice: Have it put onto a legal document, generally the court gives tax rights to a non-custodial parent if there is a large amount of child support involved. For parents that have joint custody, usually it is determined that one parent gets odd years and one gets even, two extra days of custody would not have any impact on this. If your state has a Friend of the Court type service, I'd start by contacting them for advice, they will direct you on how to get this started, you are probably going to have to have an attorney. Generally the judges are pretty fair about this kind of thing, the judge may even give you 4 years to even it up. If you have a legal document, your ex has to follow it no matter how many days your daughter stays with him or you.

If I were you, I would just file before he gets a chance to. He can't claim her if you do it first. Make sure you e-file so it is super fast. Sounds like he is really screwing you over. I suppose he doesn't pay you any child support either since he has half custody. Try your local legal aid office in your city and just ask them what to do. You may need a lawyer. You should go to court and shoot for 60/40, you having the larger half of custody, and file for child support while you're at it. A girl needs her mom! You could have received thousands from the earned income credit the years he claimed her.

A sympathetic mom of three,
M.

i don't know the steps but that is BS. especially if you have custody of her. you can get a free consultation if you call a family law-lawyer and just ask them their opinion and what to do.

my husband's ex claims both kids every single year even though he pays child support and always has. it's opposite of your situation but frustrating just the same.

really, just look in the phone book, call somebody and explain your situation.

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