Q: My ex and I have a custody order where it states he can claim one child and I can claim the other. However no child supp

A: This is a very common issue. Unfortunately, there is no easy answer because there is a conflict between state and federal law. Under Colorado law, the claiming of the children is based on the custody agreement, regardless of how many days either parent has with any children, age or support. Under federal law (i.e. the IRS) the rule states there is a four-part test. Here is a link to the 4 federal requirements: http://www.intotolegal.com/upcoming%20Events/Qualifying%20Child.html .

Assuming that you meet all 4 federal requirements for claiming both children, you should be allowed to claim the children regardless of any custody agreement. However there are two risks with the statement. One, if both you and your ex claim a child there will be an audit of BOTH parents--only the parent who meets the 4-part test can claim the child(ren). If you are certain you meet the test, you should win the audit, but you will be audited nonetheless. Two, assuming that you do claim both children you are violating the custody order. To be clear, no judge in Colorado can mandate the IRS follow a custody agreement relating to claiming a child because a state court judge does not have jurisdiction (power) over federal law or a federal agency (a judge or lawyer that does send a request will receive a "polite" lack of jurisdiction refusal letter from the IRS). Of course the judge does have the power to sanction any Colorado resident (i.e. you) for non-compliance to the custody agreement. I am not aware of any judge who has done so, but the potential exists.

In short, check the 4-part test listed above. The parent who meets the test can claim the child, but be aware there are risks associated with legitimately claiming a child in opposition to a custody agreement. It is your call...

Another alternative is to seek a modification of the custody agreement in relation to the claiming of children.

Contact a family law attorney to assess your situation and the likely risks associated with any course of action you take.

A: You are going to need to modify the orders. If he is only spending 40 nights per year you should file a motion to modify parenting time and child support. The order of no child support is, to an extent, based on equal time. That's not happening and he's getting away without paying you unjustifiably. In terms of the income tax dependency exemption, those are generally allocated based on income proportions, not what time each parent spends with the child. If you have similar income and modify the support, the allocation of the exemption would likely not change. However, once there are support orders in place, he must pay all support due in a tax year to be able to claim a child for that tax year. You should consult with an attorney.