cricket123

The Ex claimed all 3 kids. I am suppose to claim my son this year - the only year I will be allowed to claim any of them because he will do as he wants regardless of the consequences. (lack of student aid for my college student so she will have to take out loans).

The divorce decree says the "plaintiff (me)shall claim the minor child in the odd years and the defendant shall claim the minor child in the even years".

It also says " The parties shall sign all necessary forms, including IRS from 8332, on an annual basis no later then February 28 of each year, to allow the other party to accomplish this provision. In the event either party fails to provide the other with IRS form 8332 as required by the terms of this judgment, the defaulting party shall be liable for all damages, including taxes, penalties, and interest, as well as related expenses incurred by the other, including, but not limited to attorney and/or accountant fees which may result because of the other party's inability to claim dependency exemptions on their tax returns."

Ok that being said I will have to pay upfront all fees and penalties and who know whatever else I would have to pay. I will lose about $1000 or more in not claiming my son this year. If I claim him he will have to redo his FAFSA again and that could mess him up but he would come out ahead. And I could use the money I would get in claiming him.

So I need outside opinions. To fight for it or not that is the question.

Cricket

PS If I try to contact him he will not respond.

LexieCat

How do you know he claimed your son? Did he provide you with a copy of his return?

There should be no "fees and penalties" unless you file and claim your son without the necessary documentation.

I think I'd try to file a motion in family court to enforce the divorce decree. It's not April 15 yet. He can file an amended return if necessary. This is NOT legal (or tax) advice, just my own thought about the simplest way to get this accomplished.

Ariesagain

Maybe call the IRS and tell them what's happening?

I know we're all terrified of the IRS, but last year, among many other horror shows, we were selected for a random audit. We were freaked for the two months leading up to it...and then the auditor could not have been nicer or more helpful. We ended up getting a check from the IRS for $23. #eyeroll

Your ex is acting in direct defiance of a court order and committing tax fraud by claiming a fake deduction knowingly. You are trying to comply with the law.

I'm sure it's not the first time they've dealt with something like this...

cricket123

Lexie

I asked my daughter what she needed for FAFSA and she told me her dad claimed her and she used his income for her FAFSA. Last night I reminded my son he need to get his FAFSA done and he told me it was done. I wanted to ask more but the ex puts the son in the middle and twists whatever I do - so the son is a very confused young man right now. I did not want to put him in the middle again. So I have to read between the lines and conclude the Ex claimed him.

I sucked it up and just now asked son if his dad claimed him and he said idk, but he used his dads info for the FAFSA.(Federal student aid).

LexieCat

OK, well, what he puts on the FAFSA is a separate issue.

He has until Feb. 28 to provide you with the form you need for YOUR taxes. (Forget about the FAFSA for now--that's on him and your kids, not your concern.)

I think I'd send a brief email simply reminding him of the need to provide that by the 28th. If he hasn't done it by then, you have plenty of time to file a motion in family court to require him to provide it to you, per the divorce decree.

I think you're getting all muddled up in trying to arrange things to be as advantageous as possible for the kids' financial aid. The thing is, if they are using Dad's info, that's between them and him and the financial aid office. One of those areas not on your side of the street.

cricket123

Ok lexie I will send him an email. I do understand that the FAFSA is now their concern. I did tell my daughter/son to research it and decide if a lower income would be to her/his advantage for getting grants etc. So they let it happen so it is on them to get their own finances next year. When they call and say they need a loan for college I am going to tell her to talk to their dad he claimed her. Son is still up in the air.

As for the email - history will repeat themselves the ex will not respond. I do not exist.

LexieCat

That's OK--all you are doing is reminding him--do NOT give him any "pointers" re the financial aid. If you don't get the document by the 28th, go IMMEDIATELY to family court and tell them you need paperwork to file a motion to compel him to provide the form as stated in the decree. They will probably give you a packet to fill out and a court date. Just filing the motion may be enough to get the document. If you get the document in the meantime, call the court and ask what you need to do to withdraw the motion because he has now complied.

I also suggest that if you run into a delay with the court date, file for an extension on your taxes. You can take an AUTOMATIC extension until October 15. You just file a simple one-page form, and as long as you aren't going to owe taxes, that's all you need to do. If you are going to owe taxes, you have to pay them at the time of your extension, but you don't have to file the 1040.

I would insist that he comply with the order. It's a simple enough thing, and if it saves you a thousand dollars, it's well worth it.

ETA: if there is a filing fee for the motion, ask the judge to order him to pay it, also per the decree. If it's enough money to bother with, it might be worth NOT withdrawing the motion, just so you can be reimbursed for it.

cricket123

thanks lexie

LexieCat

Oh, and when you're filling out paperwork, be sure to include under "relief requested" or "what you want the court to do" a request that the court order that you be reimbursed for your reasonable expenses involved in having to file the motion (and include your mileage, any lost time from work, parking, whatever it cost you--have all that ready to bring to court with you on the motion day).

amy55

My divorce decree states the following:

" Should either party fail to abide by the terms of this Agreement, then the defaulting party will indemnify and hold the other harmless for all reasonable expenses and costs including attorney's fees and disbursements incurred in successfully enforcing this Agreement".

-----------------------------

see what yours says.

I totally agree with everything that Lexie said.

I wanted to post the indemnification clause in my divorce decree, so that you can check yours, and so that it will ease your mind a little.

BTW, I don't exist either.

(((((hugs)))))
amy

Aeryn

Once upon a time in a different life I used to be an EA (well I guess I still am one just not practicing). EA just means Enrolled Agent licensed to represent taxpayers before the IRS.

Anyhow...claim your child. All that will happen is the IRS will send you a note that the child has already been claimed. Then you can respond with a copy of your divorce decree. Eventually the ex will lose and will have to pay back the money with penalties and interest and you will eventually get a tax refund complete with interest. Get an EA or CPA to represent you and help you (it will be worth it in the end).

Next year or the next year you're allowed to claim them FILE EARLY. If you file before him then he's the one that will get the notice from the IRS saying the child has already been claimed...and whatever...let him deal with it and get mad.

As for the financial aid...eh...it can always be refiled once things are sorted.

Aeryn

Edited to add....your EA or CPA will help explain it but if you do file and claim them plan on not getting the refund right away....plan on getting a letter stating they've been claimed and go from there.

Everything I wrote is not advice just things I experienced back when I was a practicing EA. Believe it or not this is more common than you think...and it doesn't just happen with A's....it happens in a lot of normal divorce situations as well.

LexieCat

The way I read the rules, the noncustodial parent can't take the exemption without the form. That's not advice, either, just my reading.

Aeryn

I have over 15 years of experience practicing in similar issues.... please do consult a practicing EA or CPA....someone with experience in tax specifically. A lawyer is not the same as an EA or CPA.

cricket123

I talked to the person doing my taxes and I stand to lose a lot more than $1000 so I have no choice I have to fight for it. I just have to wait until the 29th before I can do anything.

Cricket

LexieCat

That's a week from today. Relax. You have a game plan if he doesn't provide the document.

53500

Hi Cricket,

I'm a CPA, EA and tax accountant. Coming late to this thread because it is tax season and I'm working all the time. So this is my take on your situation.

First of all: WHAT penalties and fees? How do you know there are any?

Second: Let's say there are, let's say instead of breaking even you owe the IRS $1,000 and there are some penalties on that. Your ex has to pay them. But it won't get to that point because..

Third: He has until Feb. 28th to provide the form (or maybe Feb. 29th this year?) In any case, if you do not have the 8332 then, as Lexie said, go to court to enforce the order.

Fourth: As others have said you do not have to file yet. You can extend your return. The court will make him give you the 8332. IF he already filed and (wrongly) claimed the kids then he will have to amend HIS return to take the exemptions off so you can properly claim them.

So you do not lose. Your tax return will be correct because you'll have the 8332. Just wait until you get it even if it's after April 15th. You'll have until October 15th if you extend your return.

As for the FAFSA, there is nothing you can do at this point. If the kids used the wrong information I'm sure the schools have a way of dealing with it.

If the kids have not yet submitted it - doesn't the FAFSA let you use estimated information if your tax return isn't done yet? I vaguely remember that from when my kids were doing it. You could have your return done - correctly - and let them use it as an estimate. Hang onto it and don't file it until you have the 8332. Waiting on the 8332 doesn't stop you from getting it done. It just stops you from filing it as soon as you'd like.

Hope it works out.