Legal Question in Family Law in Texas

This is really complicated. Federal law says that the parent who spends more than 50% of the time with the children gets to claim the children. (See IRS Publication 501) The supremacy clause of the United States Constitution says that a state court order cannot override federal law. A divorce decree is a state court order, so it cannot override the federal law pertaining to claiming the children.

So the order is not effective in terms of overriding federal law so, in a sense, her attorney is correct.

However, this must have been an agreed order for there to be tax provisions in there. If there is an agreement to handle the taxes in the manner you described and she fails to live up to the agreement, then you can calculate the amount of damages you incur by her failure to follow the agreement (extra taxes you pay plus attorney's fees) and then sue her for breach of contract or under the indemnification provisions that are probably in your divorce decree. The problem with that is that she is probably judgment proof so while you could win the contract or indemnification suit, you'd probably never get any money.

Now, if the order requires her to sign IRS form 8332 in your favor in your years, you might ask the court to hold her in contempt for failing to follow that order and put her in jail.

Finally, you might file a motion to modify child support downward to pay less than guidelines on the theory that her failure to abide by the agreement and her hiding behind her judgment-proof-ness effectively deprives you of the benefit of the bargain you reached. So, for example, if this costs you $2400 every other year in extra taxes, you could ask the court to reduce your child support by $100 per month to compensate you for her failure to abide by the agreement.

Generally, I tell my child-support-paying clients to give up on this notion of sharing the tax credit because it inevitably leads to the problems you are having.

Good luck!!