Back in 1999, my husband and his ex-wife got together with their attorneys and drew up a Consent Order for child custody giving them joint legal and joint physical custody of their daughter, Maggie. In that order, they specified weekly and Holiday visitation, issues dealing with the care of Maggie and how they were going to handle filing their taxes every year claiming Maggie as a dependent. They all signed the document, as well as a judge and it was filed. They agreed on alternating every year and the paragraph was written:
That based upon the agreement and stipulation by and between the parties hereto, for federal and state income tax purposes in any year in which the parties hereto do not file joint returns, the Plantiff and Defendant(ex-wife) will alternate claiming the minor child as a dependent.
After that 1999 order, my husband and his ex-wife did not agree that the order was in Maggie’s best interest and each wanted full custody. In August 2002, both parties consented to having an Arbitrator determine child custody. The Arbitrator conducted an invesigation and in October 2002 concluded that my husband would have Primary Physical Custody of Maggie and share Joint Legal Custody with his ex-wife. She is entitled to visitation every other weekend and specified Holiday visitation. His ex-wife also pays us child support.
In this current Arbitration Order it did not specify any thing about who can claim Maggie as a dependent on their taxes every year. My husband and I assumed that since we have Maggie more than 50% of the year, we have the right to claim Maggie every year and have been doing so since the 2002 order was signed by the Arbitrator, then a judge and filed. We also contacted the IRS with this matter and were asked the questions surrounding verification of who can claim Maggie as a dependent and felt that we are entitled.
My husband’s ex-wife, however, seems to believe that since there was a specific mention in the 1999 Joint Physical and Legal Custody Order dealing with alternating tax years and not any thing mentioned specifically in this current order that she has a right to claim Maggie as a dependent every other year and is going to do so.
So, my question is this: Even though there is no mention of filing taxes and claiming Maggie as a dependent in this current order which my husband now has Primary Physical Custody, is it understood that he is the only one to claim her, being the custodial parent? And that this current order supercedes the prior one on custody as well as the other issues stated in that 1999 order? Is she in the wrong to be claiming her now that joint physical custody has been dissolved?
Please give me your legal advice since this frustrating matter interfers with my husband and I claiming our taxes jointly every year.
I would aprreciate your advice greatly!