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Child 1 is 12 Child 2 is 14 Child 3 is 18 and in college full-time, but would still qualify to claim for a deduction for 2011
I have Child 3 each year (although I will not be able to claim him going forward as he provides his own support via student loans in his name; I no longer pay CS on him either, as he's in college and out of the home.......her request in the divorce). So basically, I have Child 3 for 2011, as it's decreed.
She has Child 1 every year and we alternate Child 2 (I claim her in even # years)
When I asked her to send me the 8332 for Child 3 as it's decreed, she informed me that she had done her research, (she works at H&R Block part-time, has no degree, and is certainly not a CPA) that she was claiming Child 3 this year too because the IRS ruled that the 8332 was "voluntary" and it didn't matter what the Court said. She said that she had already filed and was using the refund to pay some of her expenses. I calmly informed her that she was in violation of the Decree.
This was her email to me:
"As it turns out, after some research into current tax law and the most up-to-date changes, I was legally entitled to claim all three kids for 2011 as their custodial parent. The IRS definition of a custodial parent is the parent with whom the child(ren) spend the most number of nights. In some cases, custodial parents agree to sign IRS Form 8332 which releases the exemption to the non-custodial parent and that form is attached to the non-custodial parent's tax return. (Ideally, this form should be signed during the divorce proceedings.) Regarding the divorce decree, the tax court has already specifically ruled that a decree which does not contain the children's social security numbers plus the dated signature of the custodial parent is not a substitute for Form 8332."
I am absolutely livid. Do I have a leg to stand on here? As I understand it, she is in complete violation of the Decree, regardless of her f&*king opinion of IRS tax law. I shouldn't be surprised. She's always felt entitled to whatever she wanted and how she interpreted things.
Yes, but without Form 8332, the IRS can get a little testy if I file and she's already claimed him. If anything, I'm better off to file for Contempt. Either she reluctantly signs the Form to avoid Court or she rolls the dice and is held in Contempt. She'll have to amend her return and give back the refund. It's a huge pain in the < hindquarters > for her, but she deserves punishment for the outright arrogance and blatant violation of a Court Order.
File for contempt then, and ask for a signed 8332 (for all future years) and court costs as remedy. No need to discuss with her, or contact her lawyer. Her lawyer works for her, not you, so you are wasting your time. You may want to send an R3 letter first, stating you need the 8332 for the children in question, and specifically reference the section of the decree that stipulates it.
To avoid this, file ASAP in the future. Like after you get your last pay check of the year. Estimate the info needed, and amend the return when you get all of your W-2s and documents.
These types of situations are the exact reason that the IRS requires the form rather than a copy of a decree. In our decree I specifically inserted language that required us to execute for each other an IRS form covering each alternating year until my daughter's 18th birthday.
What your loving ex is missing is the fact that the form isn't really voluntary. It is simply an instrument that the IRS requires for filing if you were divorced after 2008 (2008 or earlier a decree can still be used in place of the form). It in no way has anything to do withe the lawful order contained in the decree. Her statement regarding the decree is technically accurate as the decree can't be used in place of the form however that does not invalidate the legal obligation rendered under the decree.
The contempt will be based upon the fact that she filed claiming the child knowingly in contraindication of the order. The remedy is damages in the amount that the deduction increased your tax liability, a requirement that you both execute the appropriate IRS form for all future years at the time the decision is rendered, and recovery of court costs and legal fees. Make sure anything else with her is in writing as she is digging her own hole that the judge should be thrilled to see.
"...it could be worse news then the fact you're going through divorce -- it could be as bad as you could continue to stay married to the lying screwing sleezebag" Thoughts?
My ex was playing around with this and I was worried that she would just file and claim both kids and I would have no recourse.
That is not the case. If your ex is in contempt of the degree the judge can order her to file an amended return. He can also order her to sign the 8223 form (or go to jail for contempt), and at least where I live the judge would normally make her pay your attorney fees.
If it comes to April 15th and you don't have the 8223 form in hand, just file for an extension and pay what you think you will owe with the proper number of deductions. You definitely do NOT want to claim the children without the 8223 form.