Taxes-Temp order

[newwife]

Long story short-original agreement was 50/50 joint, legal and physical, every other week. Child is dependent on taxes every other year.

New Temp orders- Father gets custody. Nothing is mentioned about taxes. Mother gets every other weekend-however has not exercised ANY parenting time OR paid any child support that was ordered in the temp agreement.

Our lawyer said not to file for permanent orders, let a lot of time go by (especially because she's not exercising any time).

Well, 2012 is the year that NJ is supposed to be able to claim child.
Since she is 1) in arrears in child support 2) father has child much more than 50% of time
Can't father claim her this year?

opinions?

The reason I'm asking this now-in July-is father might want to get permanent orders hearing started NOW-so that he could claim for 2012(if he can't now).

[Anything4Her]

I would go ahead and claim her. Let the ex find out that her deduction has been disallowed. She'll get mad and may take you to court. That will be great for you, counterfile for fees, child support and perm orders reflecting the current status quo.

Under the IRS rules, he should be able to claim her. It is easier to get forgiveness than permission.

[hoosier_dad]

I would wait and clarify this in the final decree before going against the original decree. The exception would be if there was a clause about CS being current in order to claim a dependent. Otherwise the IRS rules and having the child >50% have no bearing on the fact that your decree states you alternate the dependency exemption. Seems to be a big assumption that a change in parenting time would result in a change in the deductions. I'm sure my state is like many others where the norm is to split dependency exemptions regardless of parenting time.

Also if the final ruling is after 2012 taxes are filed that doesn't mean they are final. You can still get the exemption and refile the amended tax return.

[minuette]

What year was the original divorce finalized?

Did either one of them sign a Form 8332, for the release of the dependent exemption, that covers this year (either as part of a multi-year release or this specific year)?

How likely is the ex to simply claim the child as a dependent as usual next year, without regard to the change in parenting time?

[newwife]

They have been divorced 4 years.

NJ has filed claiming child every year regardless of decree saying every other year.
She e-files in first week in January, gets the refund, spends it. And i'm assuming has IRS issues later on.

My husband has had to mail in his return every other year since he can't e-file since daughter's SS# has already been used. But he files, gets the deduction, and never hears anything from the IRS. (NJ says she files amended after he emails her telling her she made a mistake).

No one has ever signed an 8332.

[grgr]

Is there anything in the new order that states anything unchanged by the new order remains in effect?

Not sure if this is done (or assumed) in temp orders but I have seen it in changes to permanent orders. Maybe Minuette would know?

[minuette]

Any portion of the original order that is not specifically modified or struck by the new order (temp or otherwise) would still be in effect. Since it seems to be a Pre-2009 decree, the IRS would only need to see the appropriate pages from the original order to rule in the mother's favor. The fact that parenting time has changed drastically doesn't work in dad's favor either, since the 8332 (or equivalent pages from the decree) is meant for the CP to release the claim to the dependent exemption. Dad as de facto CP, in effect, signed a multi-year release of the exemption when he signed the divorce decree.

Fortunately, it's not too late to get one more modification to the temp order.

If another hearing has been set already for sometime in 2012, I would get a motion on calendar to be heard at that hearing, to modify the temp order to allow Dad to claim the exemption (given the reality of the situation) for 2012. He'll be filing on paper next year as usual, but by the time he gets to filing in 2014 for the 2013 tax year, he should be confirmed as the CP and the dependency claiming clause of the original decree should be modified so that the dad has the right to claim the dependency exemption every year.