Professional Opinion


#1

First let me preface this by saying I completely understand that no one can guarantee the outcome of a court case. However, I am grappling with spending money on a lawyer if the odds are stacked against us so all I’m asking for is your perspective on my circumstances based on the history that you may have seen in the courts and the facts of our case.

To begin with, my husband make $106,000 a year. His ex-wife, reports that she makes $22,800 as of our last court date in December 2008. He pays the ex $19,200 a year in child support. For a grand total for her of $42,000 annual income. He carries the health insurance for the 3 children at a rate of $3000 annually. He also pays 80% of the uninsured health costs for an average cost of $1,000 annually. He pays all the travel expenses for our visitation with the children to include her travel expenses for an average annual cost of $3500. We have legal joint custody of the children with her but because we live in the northeast our visitation is limited to school vacations for a total of 8 weeks a year so although we have joint custody, the nights spent in each house aren’t equal.

We know that she gets to claim the children on her taxes because they reside primarily with her and unless she voluntarily gives us the permission to claim the children on our taxes we can’t claim them. We’ve tried reasoning with her that because we spend an average of $26,700 annually on supporting the children, which is obviously more than she makes in a year so she isn’t spending this much out of her pocket on the children, that we should have the right to claim them. She is refusing to comply with our request as it would mean she’d be out her annual tax return and she’d have to live with the fact that she did the right thing and that it benefited her ex-husband. Our lawyer says that if we take the ex to court that most likely we would be granted the right to claim the children.

My concern is that our lawyer has incentive to tell us to go to court because she’d be getting $250 an hour to defend our case. She wants $5000 in retainer, which we don’t have to begin with, let alone gamble away. I’m asking this forum because you don’t have anything to gain. Given all the family law cases you have probably dealt with and knowing the judges in NC, do you feel this would be a profitable gamble for us to pursue? My husband’s concern is that because she grosses significantly less than him that the judge will most likely side with her saying that because she makes less, is the primary parent for 10 months a year and is a single mom living with her parents that the victim picture has been painted and that she has “earned” the right to benefit from them on her taxes despite the fact that we almost completely financially support the children independent of her. What do you think, do we have a pretty good chance of winning the right to claim them or not, based on what you may have seen and know in your history in family law?

Thanks so much!!


#2

Per IRS regulations, the custodial parent may claim the children on their taxes. The judge may order the custodial parent to waive this in favor of the non-custodial parent.