mom2collegekids

I did not receive any benefit from allowing him to do this. And it states he can continue to do so as long as he is current on his child support. Sounds like I will be contacting my attorney. Thanks so much!



Ok...so once he's no longer paying any child support for Daughter number one, he can NO LONGER claim her. He can claim Daughter number two at that point, but not Daughter number one. So, at that point, YOU can claim her.

Paying child support for the younger D doesn't give him the right to claim for older D. So, when does support for older D stop? at high school graduation???


the divorce decree isn't overriding any tax laws

Right....because he can ONLY claim them while he's paying support as the decree states. But, if he were to continue to claim Daughter Number One after he stopped paying for HER support, then he would be violating the tax laws AND his divorce decree wouldn't offer any cover.

cptofthehouse

The sticky part of this whole thing is that there are additional tax benefits that occur when one has a child in college. Though it seems to be obvious that the one paying for the college should get the deduction/credit, throw in a GI Bill and it becomes complicated. I don't know tax law or divorce law, and as I said before, the states involved and the original agreements could be the determining factors in this situation, so, an attorney is required. Right now I don't see how the OP can get tax credit or deductions for having a child in college even if she is paying for all of it and the ex is not since the child is not listed as a dependent on the tax return. Dad would be able to claim this even if he is not paying it, is the way I see it. And with that GI Bill benefit, who knows how that works. An attorney should advise the OP.

wareagleblonde

m2ck, the child support ends at 18 or HS graduation whichever occurs last.

And I will definitely be discussing this with my attorney!

annoyingdad

That's a legal interpretation neither of us is qualified to make. If one has paid support up to when it legally ends, they could still be considered "current" on child support after it ends.

mom2collegekids

^^
That would be a ridiculous interpretation. If that held, then the dad could insist that he has a right to claim his adult child forever....even if she were to never go to college, work full-time, and be completely self-supporting......or marry at age 19 and be someone else's dependent.

wareagleblonde

There definitely needs to be some clarification made in the decree. I just wish I had the sense enough then to stand my ground. I am now more determined than ever to be proactive and get this changed. Thank you all again for your advice/input.

annoyingdad

Mom2, no he couldn't insist on those things. They would be in violation of tax law.

mom2collegekids

Right. Which is why logically, once he stops providing support for D1, he shouldn't be claiming her anymore. A sticking part would be the last year if he provides support for part of the year.

Another sticking part, since he's providing GI Bill for years 1 and 2, would that "count" as providing support for those 2 years?

vballmom

Mom2 you seem to be stuck on seeing this the way you think is right as opposed to what the tax law says. If the child is under age 24 at the end of the tax year, is a full time student, and does not provide more than 50% of her own support, she can be claimed as a qualifying dependent on one of her parent's taxes. Which parent claims the child on his or her taxes has nothing to do with how much support that parent does or does not provide. In the OP's case, the ability to claim the child as a dependent for tax purposes was part of the divorce settlement. If the agreement is to be changed, as the OP currently desires, it must be renegotiated according to state divorce laws, not Federal tax laws.

2collegewego

mom2ck, It's not that simple. They really do need to negotiate it out. If the decree gives him a right, she needs to get the ex to agree or talk to an attorney before she declares one of the kids a dependent. Again, tax law allows him to declare the children even if he's not paying a red cent towards them as long as the parents together are providing support. As a matter of fact, on that link provided, it says that a post-2008 decree must not include a condition that the parent be paying child support:

"The form or statement must release the custodial parent’s claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support."

wareagleblonde, didn't you have an attorney? I don't understand how you say it wasn't considered when it's part of the decree. You may not have taken him to the cleaners but a divorce agreement is a negotiated agreement. It sounds like the GI benefits were not even part of the agreement. I think it's a good idea to split up the kids. Perhaps you can convince him by pointing out the additional tax deductions for college costs?

cap

Perhaps you can convince him by pointing out the additional tax deductions for college costs? >>

If she uses the GI Bill, there are no qualified education expenses, so you can't claim education benefits at tax time, correct? This is assuming she is at an in-state school. The GI Bill covers all tuition and fees and has a book stipend that should cover most or all of the books if she doesn't buy all brand new/from the college books.

CTScoutmom

Regarding the father claiming D1 on his taxes, IRS rules are pretty clear. I am a tax advisor, and I have several clients in this very same situation:

Dependents fall into two categories, and the one that is important here is "qualifying child." She will be under 24, and a full time students. The only way she can claim herself on her own taxes is if she provides more than 50% of her own support.

Because her mother and step father (and presumably father) will be supporting her, she cannot claim herself, but will be claimed by one of her parents. Because of the divorce decree, if her mother is eligible to claim her, then so is her father, and he has the right to claim her. The fact that he is or is not providing ANY support is not relevant. The mother could be providing 100% of her support, and the father can still claim her.

The only way to get around this is for D1 to support herself. This would be the case if she takes out significant amounts of student loans in her own name.

The other issue is the tax credits - some of which might not even exist after this year anyway. If all of her tuition is paid using GI bill funds, or other VA benefits, she has paid no tuition, and cannot claim these credits (nor can her father who claims her as a dependent).

cptofthehouse

The way divorce decrees and the tax law can work together often does not make any sense. My friend had full custody of her two kids, and decided that she preferred to get a full settlement rather than payments from her ex. But one thing that was added to the decree was that the dad was allowed to declare the younger of the two kids as his dependent. That was so that he could file as single parent, a preferable tax status. This is standard in divorce situations, and you won't get far with a judge if you hold out because it makes no sense to make the other person pay more in taxes. A good divorce attorney will do the numbers so that the only benefit gotten is the tax benefit and make adjustments to such settlement. In reality....it gets swallowed in the mix, but this is standard procedure to let the parents share the tax benefit in declaring the kids as dependents.

The problem comes when the situation changes, as it has for OP. Now there are college tax credit issues as well as the favorable status. It will take a divorce attorney familiar with these situations to advise how this should be handled, and it could well be that it's not worth challenging. You gotta pay the lawyer to take the thing to court if the ex won't budge and if the precedent in the court is to keep the decree as intact as possible, you could be out of luck. But none of us have both sufficient info and expertise to make this call. Very much a local legal issue.

wareagleblonde

2collegewego, yes, I had an attorney, a very good attorney, who advised me against this but it was my decision, a bad one at that. And yes, I agree that splitting up the kids as deductions might be something we can agree on. As far as the GI Bill being part of the settlement, I don't think that took effect until after our divorce was finalized.

He will only be deferring half of the benefits to her and the other half to her sister, who is currently a sophomore.

I have a call in to my attorney. The sticky part here is that my ex is deployed until March.

You all have been so helpful, and I wish there was a better way to show my appreciation.

OHMomof2

Good luck!!