RAGE about tax returns

Now that I’ve calmed down… I spoke to our lawyer this morning. She agreed that we were correct to file the daughter as our dependent, because the divorce decree states that my husband is to claim his daughter every year. No switching years, no stipulations. Plain and simple, he is primary custodian, he claims the daughter…

I spoke with a representative from the IRS after the lawyer, because I wanted to make sure we were covered from every angle. Publication 501 is the IRS low-down for 2006, and the info I stated above can be referenced on page 11. The IRS lady was super-helpful. I just googled the hotline number and she broke everything down for me, ■■■■-and-jane-style. :slight_smile:

Military divorcing/separated families, take note!!!

For a “normal” divorced couple, the person to claim the child as a dependent on tax is whomever had the child for the majority of the tax year. This is NOT necessarily the court-ordered primary custodian!! If you have custody and your child lives with your grandma instead, then grandma can legally claim the child. If you don’t have primary custody, but the other parent allows the child to live with you for most of that year (regardless of what the custody papers state!!) then the IRS will allow that parent that had the child physically in their home to claim the exemption. (See page 11, “Custodial Parent and Noncustodial Parent”). This is very important for any families who might be “trying out” custody with the other parent without actually amending the order! If you let your child live with the noncustodial parent for the majority of the year, you will more than likely not be able to claim that child on your taxes without permission from the other parent, despite what your divorce decree might state.
My husband’s daughter DID live with her mother for the entire tax year, because my husband was on orders out of the country and was afraid of the legal ramifications if he took his daughter with him.


*If your child does not live with you because of Military Service, the military service is considered a “Temporary Absence” and the child is STILL considered to have lived with you, even though they may have physically resided with the other parent during your absence. (see page 11, “Temporary Absences”)

SO, because my husband sent his daughter to live with her mother during his deployment, that “Temporary Absence” due to military service trumps the “custodial parent” requirement that his ex meets, so he is still in the right to have claimed his daughter.

Dear ivyalmighty:

Greetings. As long as the separation agreement gives your husband the right to claim the child - there should be no problem. Good luck.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

So we filed our taxes almost a month and a half ago… they came back with an “issue.” It took a few days to find out what that issue was… turns out the ex filed taxes and claimed the daughter!!!
You know, with custody in question (you all have read the history about custodial father - my husband - being sent out of country an so forced to leave daughter with her secondary custodian - his ex-wife - until his return and her ensuing push for custody despite live-in abusive boyfriends and documented regimen of parental alienation and mental abuse toward the daughter) you’d think the idiot woman would be minding her p’s and q’s.
Instead she’s combative, uncooperative (even her own lawyer has to make repeated requests for her to follow through on things in her own best interest!!!) and just plain DUMB. Refusing to return my husband’s car… in violation of the divorce decree. Then destroying the engine of the car… and being sued for the deliberate damage… Getting ex-parte custody based on false claims that her lawyer presented to court, which he is now hopping mad about (we heard through our lawyer that he found out how unfounded her claims were…)… Then STILL refusing contact while she has temporary custody despite her lawyer telling she’s treading on thin ice… and now yet ANOTHER violation by claiming the daughter on her taxes, in violation of the separation agreement? Does she not learn??? Is she so short-sighted and vindictive that she doesn’t see that she’s painting herself in the worst possible light at every turn???
There’s six months left until my husband returns home from Iraq and this goes to court… and it’s like she’s trying to make life miserable for us during that period, but never realizing her whole grounds for custody are evaporating before her own self-centered eyes because of this behavior! We want to encourage a relationship for this daughter with her mother, albeit from a safe monitored home where she won’t be exposed to the abusive boyfriends and drunken rampages of her motherand if she weren’t so consistently making poor life choices, my husband wouldn’thave been given custody in the first place! I really feel sorry for her, when I’m not raging mad like I am right now…
So, what do you do when the non-custodial parent claims the child on their tax return? I’ve left a message for our lawyer but she won’t call back til tomorrow, and she’s in NC while we live in CA. Grrr, in the meantime has anyone here had to deal with this? The thing that ticks me off the most, is that I HATE it when anyone messes with my money!! It’s been six weeks, and it will now be no less than another six weeks for the return to be completed because we now have to file on paper and mail everything in, because the IRS needs the documents stating that we are supposed to claim the daughter. GRRRR…
And the tax preparer says she’ll have to pay the money back, anyway, which she SURELY must know… so what is she gaining by doing this? Another contempt of court charge, more money to her lawyer to work this, more money to ours to cover the legal fees she incurred being stupid, and she’ll have to pay back the IRS. The $700 or $800 she got in her return by claiming the daughter is going to at least double by the time she ends up paying the IRS plus the lawyers back. Do people not THINK before they act!!!