Motion to Clarify and Tax Issue


#1

This involves a few questions, but just looking for the short answers.
Divorced in 2009 with PSA incorporated

  1. In PSA, the paragraph on tax deduction stated wife has deduction in 2009 and 2011, meaning we alternated every other year, but does not exactly state that. Child was 14 at the time and would have turned 18 in 2012, which would have ended the dependent issue. However, he attended college full time for the next five years up to 2016 and wife claimed him as a dependent for all of those five years. The PSA was designed for us to have the deduction every other year, but again, at the time, no one could state if he were going to college which would have extended the allowance (I paid half of the tuition and costs of room and board etc.). Can I ask the court for a clarification on that paragraph by filing a Motion to Clarify? Not asking to reopen, modify, or amend, just clarification. Based on the answer, I can proceed further.

  2. I still owe her about $12,000, payable via court order at $290/month. She recently signed an Agreement with me if I paid her two lump sums totaling $8500, she would forgive and release me from the remaining debt. I have paid the first lump sum so all is good. Does this agreement negate the court order to pay as the court directed? It is for college costs, not child support.

  3. If she took the deductions for defendant as outlined above, can I sue her in small claims for the 2.5 years I was shut out and ask for the money I failed to get? Since the PSA does not clarify who gets the deductions for dependent, I can assume the court would split it between us, not allow her to take all five years.

  4. If we signed an agreement to pay outside of court, does that cancel the court order to pay? In other words, If I default on our Agreement, does it simply revert to a contract violation and she would have to sue in small claims. And, does the original court order no longer have teeth to charge me with contempt for failure to pay?


#2
  1. Since the agreement was voluntarily entered into, the Court will likely not be able to clarify anything. Since it is not stated in the agreement who, if anyone, was entitled to claim the child as a dependent after age 18, then likely neither party is in violation of the agreement and there is no remedy.

  2. No, the agreement does not override the court order. Only a subsequent court order can override the original court order.

  3. You will likely not be successfully in small claims court or other court action because the agreement is silent on claiming the child after age 18.

  4. No, an agreement made outside of a court order does not cancel the court order. The court order remains in full force and effect unless it expires according to the terms in the court order or a new court order is issued. You could still be held in contempt of court for an unexpired court order regardless of an agreement made out of court.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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