Legal Question in Tax Law in Texas

My ex-husband is still screwing me.

My divorce decree states that, for income tax purposes, I can claim my two children in odd numbered years, and my ex-husband can claim them in even numbered years. When I filed my 2001 tax return, I was notified by the IRS that someone had already claimed one of my dependents. It turned out that my ex was going to owe a lot of money, so he had claimed one of the children. He bargained with me that he would give me a check for the amount that I lost by not claiming both and that he would allow me to claim one of the children in 2002, if I would not report him. I agreed He wrote me a check for $1250. When I attempted to file my 2002 return, I discovered that he had broken his agreement and claimed both children. So I filed an ammendment to the 2001 return. He will now owe back taxes, as well as interest and penalties. He is taking me to small claims court for the $1250 and is also asking that I be held liable for the penalties and interest. He has a copy of the check that he wrote, whereas I did not make him sign anything stating that he would allow me to claim one of the children this year. Will I have to pay him back and will he be able to hold me liable for the penalties and interest that he owes the IRS?


Asked on 9/07/03, 10:31 pm

1 Answer from Attorneys
Barbara Lamar Law Office of Barbara Lamar

Re: My ex-husband is still screwing me.

The answer to your question depends in part on which parent has primary custody of the children. The custodial parent is automatically entitled to claim the children unless he or she signs IRS Form 8332. This form gives away the right to claim the children to the non-custodial parent. There are two lines on the form. One of them gives away the right to claim the kids for the current year only. The other gives away the right for all future years. IRS is mainly concerned about who the custodial parent is and whether Form 8332 has been signed. So, as far as IRS is concerned, if you have primary custody of your kids, and if you haven't signed Form 8332 for 2002, then you are entitled to claim the kids for that year, regardless of what your divorce decree says.

On the other hand, the divorce decree and the agreement you and your husband made last year is a state law issue (as opposed to federal tax law). Now I don't know anythinga about the character of your ex besides what you've written here, but he doesn't sound like the most honest guy in the world, since he went back on his word about letting you claim one of the kids for 2002. So it's possible he might lie in court and say that there wasn't any such agreement, and the judge might believe him.

However, if you are the custodial parent, and if you did not sign Form 8332 for 2002, or if you signed it, but for only one child, then you could use this to strengthen your argument, and you could point out to the judge that your ex has violated the tax law.

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Answered on 9/08/03, 12:14 am


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