My ex is trying to screw me out of claiming my daughter on my taxes. What are my options?
February 7, 2008 6:41 AM   Subscribe

LegalFilter: My ex-wife is trying to screw me out of claiming my daughter on my taxes. What are my options?

I realize this isn't strictly a legal forum and that I should see a lawyer (I will.), but I want to get some feedback here anyway.

The terms of my divorce say that I or my ex-wife can claim my daughter in alternating years. When it is my year, my wife can at her option allow me to claim her or claim her herself and pay me the difference. The divorce was final this past summer. My ex claimed her last year (before we were divorced) on her taxes and received the entire benefit. She is starting to suggest she believes she should get the tax benefit this year as well. This is a particularly rough tax year for me. Do I have any recourse? The options as I see them are to file preemptively claiming my daughter (which I'm guessing has some pretty serious legal implications if she decides to pursue it) or wait until she has taken the money and sue her to get it back. I'm not even sure I could win. Intuitively, I should claim her this year since she did last year, but the divorce was not final and nothing is specified in the decree about who gets this year. Any thoughts or advice? I'm in Tennessee if that makes a difference to anyone.
posted by raddevon to Law & Government (21 answers total)
Talk to your lawyer AND your accountant.
posted by Faint of Butt at 6:46 AM on February 7, 2008

Lawyer. Accountant. Yesterday.
posted by Tomorrowful at 6:47 AM on February 7, 2008 [1 favorite]

This is a technical question about the terms of your divorce that we can't answer. Not even a divorce lawyer from Tennessee with an accounting degree could answer this question without looking over the agreement, I think.

I'd suggest trying to avoid suing her, obviously, but you probably already know that this is the best thing to do for you. The thing is that a lawyer can, perhaps with the help of an accountant, look over the terms of the divorce and tell you if you're in the right or not. If, as you seem to think, those terms include absolutely nothing about who gets to go first (geez, why was that left out?) then they can put this in the correct legal forum to make that decision with the smallest amount of turmoil and cost to you possible. But no one else can advise you on that, because, unfortunately, the answer to the essential question-- do you have a chance against her in court, and do you have legal right in this case?-- is on that piece of paper.
posted by koeselitz at 6:58 AM on February 7, 2008

I'm going through the same thing. Whatever agreement was listed in the divorce settlement. In my case, it covers even and odd years and head of household. As suggested by others, only a lawyer/accountant can settle this to any real degree.
Good luck!
posted by mcarthey at 7:00 AM on February 7, 2008

Response by poster: koeselitz: I understand what you're saying. Also, I know it is hard to believe, but there is nothing more than what I have conveyed in that short explanation. It doesn't allow for a lot of interpretation. It says we alternate years and in my years she can choose how I get the money. That is literally all there is to it.
posted by raddevon at 7:04 AM on February 7, 2008

Response by poster: mcarthey: Thank you for the well wishes. I hope everything works out for you.
posted by raddevon at 7:05 AM on February 7, 2008

Talk to your lawyer, who will talk to her lawyer, and stay out of it. If you're already at the point where you two are trying to screw each other out of things you've agreed to, you need to have people who just want the best deal and aren't actually trying to fuck anyone over deal with this dispute.
posted by ROU_Xenophobe at 7:05 AM on February 7, 2008

You need to go over the terms of your divorce with your lawyer. Just because she claimed last year it doesn't mean its your turn this year - last year was outside the terms of your divorce. If it doesn't say who goes first or who gets even/odd years then you're probably going to have to fight for it.
posted by missmagenta at 7:27 AM on February 7, 2008 [1 favorite]

Agreed that you need more help than we can give you. But also-- did your daughter live with your wife for more of the year than with you? If so, your wife gets to claim your daughter as a dependent by default, and you're only able to claim her if your wife fills out a form specifically waiving that right. Which means that if you try to "preemptively file" then 1) it's not going to work in the end and 2) it's possible that you'd have to enter false information in order to qualify, which could end up being fraud. (On the other hand, if your daughter lived with you for more than half the year, you'd probably be free and clear with the IRS and would just have to deal with the legal end of things.)

See this publication and especially this section.

By the way, if she's the custodial parent she can probably benefit a lot more tax-wise than you would be able to (ie, there are certain things only custodial parents can claim), so you'd likely be collectively better off if she claimed your daughter and then paid you the difference. So unless you're the custodial parent, you might want to treat it less like a "tax issue" per se and more like a straight legal/money issue.
posted by EmilyClimbs at 7:37 AM on February 7, 2008 [1 favorite]

Ex-wife, sorry!
posted by EmilyClimbs at 7:38 AM on February 7, 2008

2nd EmilyClimbs on the benefits for the custodial parent, do try for civilized agreement. Sorry about your difficult tax situation, I hope everything turns out OK for you.
posted by francesca too at 7:48 AM on February 7, 2008

Response by poster: I would totally love a civilized agreement, but I can't remember having one of those with this woman. The problem is not that she wants to claim her and give me the money. I would be fine with that. The problem is that she wants to claim her and keep the money.

Thank you EmilyClimbs for the advice.
posted by raddevon at 8:03 AM on February 7, 2008

This is from the perspective of someone who doesn't particularly give a damn about you, but feels some badness on behalf of your daughter as another child of divorce.

You're talking about fighting over chickenshit. Financially, the amounts of money here are *nothing*. The worst outcome is that you don't get to put her on your taxes this year, but do get to next year. That is, what you're talking about is getting a tax break next year instead of now. So the cost of this to you is just the value of the tax break this year, minus the present value of taking it next year. Unless your taxes are astronomically high, this cost to you will be, at most, in the low hundreds of dollars, so it's not worth fighting about. If your taxes are astronomically high, then you're well-off and it's still not worth fighting about.

Even the monetary costs will completely outweigh any benefit you get. And the psychic costs to you will be immense.

And unless your daughter is such a tiny infant that she's basically unaware of the world around her, watching you to keep fighting, and keep fighting nastily over very small stakes, is just going to make her even more fucked-up than the divorce already did.

So anyway, frankly, unless your agreement clearly specifies that you go get to put her on your taxes in the first post-divorce tax return, I would just let her have it and take it next year. It's cheaper than lawyer time. It's cheaper than another year of therapy for your daughter when she's 15. It's cheaper, psychically, than worrying about it.

But if you really need to fight over it because your tax year is so terrible, I would suggest this:

(1) Figure out what you would save putting her on your taxes.
(2) Pay your ex what she would save putting your daughter on her taxes out of what you saved by putting her on yours.
(3) Everyone is better off.

Or at worst:

I would totally love a civilized agreement, but I can't remember having one of those with this woman.

This is exactly the reason to hand this to a lawyer, hope for the best, and stop worrying about it yourself.
posted by ROU_Xenophobe at 8:40 AM on February 7, 2008 [4 favorites]

Response by poster: ROU_Xenophobe: The problem here is not entirely the money. It's that my ex is totally unreasonable. I don't want to be stepped on just because I'm not terribly confrontational. She is also this unreasonable when it comes to matters of our daughter. I want her to do the right thing in matters of finance in addition to all other matters. I want to send a message that I won't lie down and let her have her way just because that's easier.

I work hard to do best for my daughter. She does not now nor will she ever hear anything about this issue. I will admit that our general contempt for one another will probably show through regardless, but I don't know how not to feel contempt for a person who would try to pull something like this just because she believes she can get away with it.
posted by raddevon at 10:34 AM on February 7, 2008

Yeah, I get it.

All I'm really saying is that, if you need to stick to your guns, at least have other people who don't have contempt for each other hash this out for you. You shouldn't be worrying about recourse and thinking about filing preemptively and sending her a message. If you're going to fight for this, you should do so by hiring a lawyer, leaving him to pursue your interests, and listening to his advice. That way at least you poison this unavoidable relationship less than if you were dealing directly with each other.

And that you should think twice about it, or ask a relatively disinterested party like your attorney whether it makes sense to stick to your guns this time, but that's admittedly beyond the scope of your question.
posted by ROU_Xenophobe at 11:04 AM on February 7, 2008

The problem here is not entirely the money. It's that my ex is totally unreasonable. ... I want to send a message that I won't lie down and let her have her way just because that's easier.

It seems that the tax issue isn't really the issue. You want to use the tax thing to bludgeon your ex-wife and make a stand. Don't do that. Your child is what's at stake here, not a few bucks. If you must pursue the taxes, then allow your lawyer to do it.
posted by 26.2 at 12:07 PM on February 7, 2008

Whatever happens, get in writing, "So with this you agree that I get to claim her as a dependent in even years and you in odd?" or vice versa. I learned the hard way that in divorce agreements, if it is not in writing, if it is not spelled out in meticulous detail, it will likely bite you on the butt at some point.

In California at least, whomever has 51% or greater custody gets to claim the kid unless you sign a waver to declare your daughter as a dependent. (My ex and I fill these out every year. Luckily we use the same CPA.)

Look at the exact language of your divorce agreement. In disputes with my ex, I get angry, I write an email. I save it to drafts. I reword it in a way that isn't accusatory, but asks him to confirm things, "I'm confused by your request to claim Kiddo as a dependent this year. We agreed to "quote from the divorce agreement" and you claimed her last year. " Then, I save it to drafts again.

However, over the long haul, no matter how bad of a tax year it was for you, having a terrible relationship with the ex over nitpicking details that have to go through lots of lawyering will cost you more - in time, in money, in effort, in tension and in therapy the kid may have to go through.

Good luck. Stay calm. This doesn't matter. This all shall pass.
posted by Gucky at 12:15 PM on February 7, 2008

(This information may be outdated) In general, the first person to file gets to claim the deduction for the offspring.
posted by Mozzie at 1:47 PM on February 7, 2008

Best answer: This is from my IRS friend:

"This is a common situation. If it is the ex-husband's time to claim the child, he should claim her, but in doing so, he should write a letter explaining the terms of the agreement and provide a copy of the agreement. Even if his wife also claims the daughter, he will get the credit, because the IRS will see that she claimed the daughter the previous year. She may have this credit reversed and be made to pay the amount she would have saved if the credit were applied.

"It is *not* true that the person with physical custody or "the first person to file" gets to claim the deduction necessarily - the IRS does not work in such arbitrary fashion; it goes by court documents whenever possible. There is in fact no reason to even have contact with your ex-wife if the "pattern" of alternating years has been established. Just write a letter explaining it all with a copy of the court document, and we'll sort it out."


So there you go. I hasten to add that a friend with kids - four years after getting a divorce and never claiming either kid realized he had been entitled to claim one of the two kids each year, according to his divorce settlement. He filed amended tax returns along with his divorce decree, and within a few weeks got back many thousands of dollars (strangely, one at a time for a few weeks.) His ex-wife received notice that she now owed "x" amount. It was oddly efficient.
posted by Dee Xtrovert at 2:48 PM on February 7, 2008

The alternating years thing strikes me as somewhat capricious, and I'd be astonished if an accountant had suggested it. Are you able to change it by mutual agreement? If so, there are very likely to be other arrangements that will benefit both you and your ex more, especially if one of you has some major change in economic circumstances in the intervening years.

To put it another way, it would be better for you each to get a $5,000 benefit each year than for you to take turns at an $8,000 benefit, particularly if some year your turn or her turn might be worth $2,000 or $20,000.

I suggest asking your accountant to look into it, and come up with a tax scheme that benefits you both the most overall. If that's the case with you (or her) claiming the daughter every year, then it may be worth negotiating that in exchange for increased (or decreased) child support. If it turns out to be worthwhile enough to do, and your lawyer says you're able to vary the terms of the divorce, then have the accountant prepare the explanatory letter and have your lawyer send it to her lawyer (cc her, and also her accountant if you know who that is).
posted by aeschenkarnos at 6:16 PM on February 7, 2008

The part where you don't want to be stepped on - You're divorced. The more you detach, become numb and immune to your ex-, the less you react, the better for you and your child, by a long shot. Deal with the money as ROU_Xenophobe suggests. Be very calm and businesslike. You're going to be divorced and co-parenting for a while, so focus on your child and not on your ex. This is the healthiest thing for you and your child. You win by not participating. I can tell you that if you consistently opt out of any bickering, your child will someday recognize it and thank you. This will be a sweet, sweet vindication.
posted by theora55 at 8:12 PM on February 7, 2008

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