My name is Danielle Diaz. One of the things I've learned in life, both inside and outside the courtroom, is that it is important to not see others as your enemy. Even though you may see the prosecutor as your enemy, he or she is just trying to do a job. It may be possible that you can get a prosecutor or the judge to be sympathetic and get him or her on your side. In order to accomplish this, you need to understand the law. I feel that most individuals do not understand the law, which is why I was motivated to create this blog.
The process of divorce is largely governed by state law. Issues with asset division or child support are usually resolved by the time the divorce decree is finalized. However, the federal tax code may take precedence over your divorce decree in regard to claiming children as tax dependents in the years following a divorce.
Some divorced couples mistakenly assume they can decide between themselves which of them will claim their child as a tax dependent. The incorrect assumption may be due to a change in federal tax law that took effect in 2009. Before then, divorced individuals could rely on the stipulations of their divorce decree for guidance on tax filing.
Tax exemption for custodial parent
In most cases, the tax exemption for a child dependent is now awarded to the custodial parent. To determine the custodial parent, the number of nights the child lived with each parent is compared. The custodial parent is the parent with whom the child lived for over half the year. The parent who is not the custodial parent is designated as the noncustodial parent.
Tax exemption based on divorce decree
If you had a divorce that went into effect before 2009, you and your former spouse may claim any children as tax dependents in accordance with the divorce decree. For divorces finalized before 2009, the noncustodial parent must attach certain pages of the divorce decree to their tax return in order to claim a dependent.
Tax exemption available to noncustodial parent
As a practical matter today, income tax issues should be a part of your divorce negotiations. There is an IRS form available that allows the custodial parent to release the tax exemption for a child to the noncustodial parent. A divorce decree should ideally spell out the conditions under which IRS Form 8332 is used to release the tax exemption.
Form 8332 is signed by the custodial parent, and the form is then initially filed by the noncustodial parent. A subsequent Form 8332 can also be filed by the custodial parent to revoke an earlier Form 8332 filed by the noncustodial parent. If you are contemplating the future receipt of alimony or child support, the use of Form 8332 can provide leverage to ensure that payments remain on schedule.
After a divorce is finalized, it often becomes more difficult to obtain a mutual agreement from both parties. Therefore, the conditions under which Form 8332 remains in effect should be clearly stated in the divorce decree. That way, you know what to expect each year as you file your income tax return. Contact a divorce lawyer for more information on the negotiable aspects of divorce.