Legal Question in Family Law in Michigan

Re: Tax exemptions

File it your way and attach the judgment. Bill Stern 248-353-9400

Re: Tax exemptions

It would appear that your ex is entitled to claim the child for the tax year in question. IRS does not consider the language in a divorce judgment to be controlling for who is entitled to claim the dependency exemption. Almost all of the divorce judgments fail to meet IRS standards governing dependency exemptions. Here is the criteria IRS uses to determine who gets the exemption. The support test for the child of divorced or seperated parents depends on meeting all of the conditions listed below.

1. Separated: Parents must be either:

a. Divorced; B. Legally separated; c. Separated under a written separation agreement; or d. Have lived apart at all times for the last six(6) months of the year.

2. Support: One or both parents provide more than half of the child's total support for the calendar year; and

3. Custody: One or both parents have custody of the child for more than half of the calendar year.

DEPENDENCY EXEMPTION: Generally, the parent who has physical custody of the child for the greater part of the year is treated as the parent who provides more than half of the support.

1. Actual support is not the issue; the custodial parent generally is deemed to pass the support test.

2. The divorce decree may not place demands or conditions for the noncustodial parent to receive the exemption; if there are conditions, then first right to claim the child reverts to custodail spouse.

However, there are three exceptions to the above rule as follows:

1. The custodial parent may waive his/her right of the child's dependency exemption by executing a written declaration releasing the exemption right to the noncustodial parent for a year, a number of specified years, or permanently.

-- Form 8332 or a document identical in substance can be used for this purpose [Section 152(e)(2)(A)].

The form is then given to the noncustodial parent, who attaches it to his/her return for each year the dependency exemption is released.

-- A multiple support agreement (Form 2120) is filed that allows the child's dependency exemption to another taxpayer; or

-- In the case of certain pre-1985 instruments, where:

The custodial parent releases, and the noncustodial parent pays at least $600; or The noncustodial parent pays at least $1,200.