Disclaimer:

I know this is off topic but if it doesn't relate to you, rather than calling me names, putting down my service or making some other snide comment like some felt empowered by doing on the thread I posted last week, just pass it on by and leave me alone. There's no need to prove that you're an asshole by putting down service you've never experienced and pumping up your false superego because you have no self-worth of your own. It just proves you're of weak mind and character and it help prove you're an idiot considering my reviews average almost a 9 in performance.


Sirs and Ladies:

I have a girlfriend who has legal joint custody per her divorce agreement where her ex, who sees her daughter approximately a sum total of 1 month in the summer and every other holiday for 3 days, can write her off every other year on his taxes. He pays child support in the amount of $300 a month. She has informed me that as of this year, there is a new tax law that states that the primary supporter of the child (80% or more of the time) automatically gets the write off, however that it doesn't apply to her situation because of the divorce agreement stating that they trade years on writing her off.

Now my question is, does the federal tax law supercede the divorce decree? She said she spoke to H&R Block about it and they said that her divorce decree actually supercedes the federal tax law. I wonder if that is in fact true, or if the law would out-weigh the divorce agreement. Her ex husband doesn't even pay her the child support, rather he's in the military and the government apparently pays it according to her. I guess he's allotted two BAQ's. One for him and the other to pay my niece's child support, yet he writes off the child support each year.

If anyone can shed some light on this for me, it would be very much appreciated. I'm not sure I personally trust H&R Block being that my step brother at age 21 was working for them one year while still in college and they trained him briefly before setting him out to prepare people's taxes. If anyone has any more knowledge about this law and this issue, I would love to hear from you. .

Respectfully yours,

Megan
[email protected] if you prefer to email

megan,,, i am not an attorney,however it may not require one to answer your question.just a c.p.a...i recently went through a divorce and was faced with the a similer situation.my wife left me with the kids[at the time they were all over 18]believe it or not i ended up with the house[ after i payed her off]so they all stayed with me. she got it in her mind[no comment]that she could take the deduction for my daughter and just DID IT last year.she called me to tell me this and i checked with my accountant [who is a cpa] and he said she could'nt and if i wanted to fight it i could win.well, being the laid back, kick-me-some-more-in-the-ass-and-i-love-it kind of guy i am i didn't fight.he said if i could prove residence thats all it would take.apparently residence plays precident and gets the deduction as head of household[ hopefully shes claiming this].you could have proof just with a magazine subscription.H.R BLOCK scares the shit out of me..i have had a cpa do my tax return for years and is well worth the extra $$$ you pay..hopefully many providers are using them as i'm sure they could really help the bottem line..hopefully this helps..

This child is 10 and they have a divorce agreement and custody agreement whereby legally they have joint custody and have agreed to trade off years. In other words, for tax year 2005, it's her turn to claim the child and tax year 2006 will be her father's year. I just wondered if the Federal tax law supercedes the divorce and custody agreement with regard to who can claim the child since the child's mother provides far more than 80% of the child's needs, fiscally and otherwise. That was why I asked for an attorney. I'm sure the answer could be gotten by contacting the IRS as well, but since legal documents state OTHER than the federal tax law, I think it's a little bit too much of a gray area.

With regard to your situation, I'm not sure why anyone is claiming the kids, especially if they are working, being that they are over teh age of 18 unless it's because they are residing with you and do not work or contribute to the household. My parents stopped claiming me at 15 when I started working and started filing my own taxes, so I'm curious. I'm sorry for what your ex wife did regardless. I'll never understand women like that and I'm glad I've never been nor will I ever be a woman like that. I'd much rather make it completely on my own than have someone hand me a wad of cash and a house just because I married them and decided it didn't work. Women like that...needy and without self-respect or independence make me sick and it's why so many men are hesitant to commit to other women. Shame.

megan

with two totally seperate issues. Contract law and the tax code. The changes in the tax code simply clarify guidelines regarding the deduction in the event of conflicting claims. If one parent meets the "80%" test they get the deduction according to the tax code. I dont think that tax code qualifies as "federal law" per se or has any bearing in the presence of a legal agreement. My understanding is that "tax law" {legal issues surrounding the tax code} isnt quite the same as the code itself.

Divorce is a civil issue handled according to state law so certain issues will vary from state to state. As a general rule a mutually agreed to settlement is binding on both parties. Alimony, child support and other issues can be altered via petition to the court with appropriate juristiction.

Federal tax laws supersede divorce decrees.  According to the IRS FAQ page (http://www.irs.gov/faqs/faq2-3.html) Federal law determines who may claim a dependency exemption. Please refer to Publication 504, Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents.


References:

Publication 501, Exemptions, Standard Deduction, and Filing Information
Publication 504, Divorced or Separated Individuals
Tax Topic 354, Dependents

fully recognizes the validity of a divorce agreement on this issue. Nowhere in any section does it provide for any form of non judicial intervention.

"A decree of divorce or separate maintenance or written separation agreement that applies to 2005 provides that the noncustodial parent can claim the child as a dependent. If your decree or agreement went into effect before 1985, the noncustodial parent must provide at least $600 for support of the child during 2005."

"Invalid decree.   Payments under a divorce decree can be alimony even if the decree's validity is in question. A divorce decree is valid for tax purposes until a court having proper jurisdiction holds it invalid.

Amended instrument.   An amendment to a divorce decree may change the nature of your payments. Amendments are not ordinarily retroactive for federal tax purposes. However, a retroactive amendment to a divorce decree correcting a clerical error to reflect the original intent of the court will generally be effective retroactively for federal tax purposes."

So section 504 clearly states that a divorce settlement is valid until nullified by a court with proper juristiction.

The only "test" is a minimum support of $600/yr for an agreement prior to 1985...



-- Modified on 3/6/2006 8:57:58 PM

Free advice about professional matters is usually worth exactly that.

Nuf Ced.......

-- Modified on 3/6/2006 9:43:05 PM

Reon't worry, SD

I find it rather strange how she is pumps herself up as a personal rep for these individuals. Nothing better than receiving second hand information from some source and then intern attempting to provide a solution to that source.  That is a complete waste of everyones time, talent and effort.

I have a lot of information to pass on and I greatly appreciate your taking the time to reply with helpful threads. To the others, well I addressed you in the first paragraph of my original post.

Good day all,

Megan

Disclaimer- I do not practice in AZ.  My best guess is the decree supersedes the Code on this issue, especially if it was part of a negotiated agreement.

megan.to answer your question.my kids file ther own tax returns for what little they work and interest income.my daughter[22] is in her last year of college.one son [20] is in college and the other son]20] is going to trade school full time.yes they are twins..anyways seeing as how they live with me rent free[as they only work in the summer ]i can claim them as head of household..

The new law is called the Uniform Definition of a Child. It has caused a lot of confusion about who can claim who.  The basic premise as it applies to support is that the parents must be providing more than 50 % of the support.  Then the person who the child lives with more than half the year is entitled to the expemption.

However, since her decree says the swap years, she has agreed to allow the former spouse to claim the exemption.  

Please keep in mind this does NOT mean He gets the Earned Income Credit.  She is entitled to that based on your post.