Q: As a custodial parent, do I have the right to claim my son for taxes even though the decree says to alternate?

A: In your situation, the IRS generally allows the custodial parent to claim the child for tax purposes. The custodial parent is typically the one with whom the child spends the majority of nights during the year. However, the IRS's rules don't automatically override the terms of your divorce decree, which is a legal agreement.

Your divorce decree's stipulation to alternate years for claiming your son on taxes is a matter of state law. If you deviate from this agreement, there's a potential risk of being held in contempt of court. Since your circumstances have significantly changed since the divorce, with you having full custody, it may be appropriate to revisit the agreement.

Given these changed circumstances, you might consider discussing the situation with your ex-partner. If you both agree to a new arrangement, this could be formalized through a modified court order. Alternatively, seeking legal advice to understand your options and the potential implications of any changes to your agreement would be advisable. Courts often consider changes in custody and parenting time when evaluating such modifications.

A: First, the state isn't going to be the one holding you in contempt, your ex-spouse would be the one bringing a contempt action to enforce the terms of your decree. Second, given that he is not exercising the requisite amount of time needed by the IRS in order to properly claim a minor child, he would have the burden of proof if he brought an action against you. The safest course of action would be to move for a modification of the decree to grant you the ability to claim the child each year, so that your decree effectively matches the reality of your situation. Otherwise, you may want to get something in writing from him if possible agreeing to allow you to claim the children and avoid a contempt action in the future. He could and should execute IRS form 8832 for this exemption.

A: My colleagues are correct. File a motion to modify the parenting plan / decree to grant you the exemption. Otherwise you run the risk of your ex filing a motion to show cause or enforce the decree, should you take the exemption without modifying.