Decree says 1 parent has both kids 51% & decree also says each parent can claim a kid

[AZ-Tax]

Decree says 1 parent has both kids 51% & decree also says each parent can claim one kids as a dependent on their tax return. I am preparing the TP's tax return for which the Divorce Decree says this TP has both kids 49%. Question, I filed this TP's first tax return AD (after divorce) as HOH. Now I am rethinking if I did this correct. Your thoughts.

Add note: my clients Ex has and continues to claim one of the two kids.

[rtsietsema]

Non-custodial?

It sounds like your client is considered to be the non-custodial parent in this case. If so, I believe that would prevent a HOH filing status. And....the ex should be providing a release (form 8332) to claim exemption for the child he does claim as a dependent.

[Lion]

Even though the divorce decree says he had the kids 49% of the time, how many nights did one or both kids sleep in his house or under his care? If not more than half the time, then he files Single and needs a Form 8332 from the ex to be able to claim one child. If more than half the time, he files HOH and would provide a Form 8832 to his ex to remain in compliance with the divorce decree. The IRS does not care about divorce decrees. But, your client and his ex can run up court costs if they ignore their decree. Tell him to keep a good calendar.

[ATSMAN]

Even though the divorce decree says he had the kids 49% of the time, how many nights did one or both kids sleep in his house or under his care? If not more than half the time, then he files Single and needs a Form 8332 from the ex to be able to claim one child. If more than half the time, he files HOH and would provide a Form 8832 to his ex to remain in compliance with the divorce decree. The IRS does not care about divorce decrees. But, your client and his ex can run up court costs if they ignore their decree. Tell him to keep a good calendar.

I am really surprised how many divorce lawyers have no idea how the dependency exemptions work. It is really sad. Lion is correct. Tell your client to count the nights the kids sleep at each parents place.

[spanel]

I am really surprised how many divorce lawyers have no idea how the dependency exemptions work. It is really sad. Lion is correct. Tell your client to count the nights the kids sleep at each parents place.

Counting nights will only go so far.... Where does the school say the kids live? Medical records? etc?

I bet all of them say mom. You clients needs to file single and have an 8832 signed. The Decree is worthless as far as the IRS is concerned.

Chris

[ATSMAN]

Counting nights will only go so far.... Where does the school say the kids live? Medical records? etc?

I bet all of them say mom. You clients needs to file single and have an 8832 signed. The Decree is worthless as far as the IRS is concerned.

Chris

After speaking to an IRS agent at a conference I was told that they are aware that sometimes kids will use a relative's address to go to a better school system.

As far as IRS is concerned Medical records, Day Care records, School Attended are supporting evidence. The primary evidence is where does the child actually live and who is providing the support.

I know some kids where the mother living in MA takes the exemption but on the school records they have the father's CT address to go to a better school system.

[taxea]

ignore the divorce papers and follow IRS rules.

[FEDUKE404]

IRS rules, not divorce decree, governs

ignore the divorce papers and follow IRS rules.

With deference to the lawyers who draw up such divorce decrees and then tell their clients "all is well," I could not agree more with your statement!

FE

[taxea]

With deference to the lawyers who draw up such divorce decrees and then tell their clients "all is well," I could not agree more with your statement!

FE

thank you...IMO neither the judge or the atty are tax pros.

[RitaB]

So ridiculous

The very idea that an attorney or judge can say a parent has a kid 51% of the time and that's that explains so much about the judicial system. There's a reason for the attorney jokes. Actually, they're not jokes.

My apologies to the three great attorneys who will read this and be crushed. Sorry.

[TAXNJ]

Good point but

The very idea that an attorney or judge can say a parent has a kid 51% of the time and that's that explains some much about the judicial system. There's a reason for the attorney jokes. Actually, they're not jokes.

My apologies to the three great attorneys who will read this and be crushed. Sorry.

But the divorce attorney is not doing the tax return and did not start this post.

You bring up a good point because there are Tax Attorneys (specialize in tax law) and general attorneys (who do not handle tax law) as well as you have tax preparers that may know very little about the tax code so therefore you have Tax Professionals.