Q: Ex-spouse claimed both kids for EIC against divorce decree terms. Steps?

A: The school solution here is for the asker to have her lawyer file an enforcement petition under and F-Docket in family court to receive a refund of the EIC payment made to the other. However, without more carefully reviewing the asker's divorce agreement, we really cannot opine as to what to do next.

Perhaps the judgment compels the parties to only file in the divorce court. Perhaps the agreement was not reduced to a writing. There may be a reason why the opposing attorney may be correct, but we do not know with any certainty.

The asker must ask this question of her divorce attorney.

A: I understand how frustrating this situation must be, especially when you have a clear agreement in your divorce decree regarding claiming the children for tax benefits. The issue you’ve encountered involves the Earned Income Credit (EIC), which is a valuable tax benefit for custodial parents. It’s important to understand how this benefit works and the steps you can take to address your ex-spouse’s actions, which seem to violate the terms of your divorce agreement.

In your 2023 divorce decree, both you and your ex-spouse agreed to claim one child each for tax purposes, which likely includes the EIC. The IRS rules for claiming the EIC state that only the custodial parent can claim the credit. Typically, the custodial parent is the one with whom the child spends the most nights during the year. If you and your ex-spouse agreed to divide this responsibility in the divorce decree, it should be followed unless there is a valid reason or legal argument to change it.

In this case, it seems your ex-spouse filed taxes first and claimed both children for the EIC, even though you both agreed that each would claim one child. The fact that your ex-spouse claimed both children, despite text messages where he acknowledged that you would claim one of them, complicates the situation. Additionally, the advice from your ex-spouse's lawyer suggesting that he could claim both children because he is the custodial parent may be incorrect, especially if your divorce decree specifically states the terms regarding the tax claims.

To resolve this dispute, here are the steps you can take:

Contact Your Ex-Spouse: It’s important to continue communicating with your ex-spouse about the issue. Keep all correspondence in writing, and reference the divorce decree terms. In your case, the text messages where your ex-spouse acknowledged you would claim the EIC for one child could be helpful evidence.

File a Dispute with the IRS: Since your ex-spouse filed first, you may have encountered an IRS rejection when you tried to claim the EIC for the child. If this happens, you should contact the IRS directly. The IRS will likely not allow both parents to claim the same child for the EIC, and they may require further documentation. The IRS may also require you to fill out Form 8862 (Information to Claim Certain Refundable Credits After Disallowance) if the claim is disputed. The IRS will review the evidence provided by both parties and make a determination based on the facts.

Request an Amended Tax Return: If the IRS rejects your ex-spouse’s claim, they will likely need to amend their tax return to reflect the proper claim for the children. If they do not voluntarily amend their return, you may need to take further legal action.

Consult with an Attorney: If the situation is not resolved through the IRS, and if your ex-spouse continues to disregard the divorce decree, you may want to consult with an attorney who specializes in family law and tax law. Your attorney can help you navigate the legal processes, including potentially filing a contempt motion for violating the terms of the divorce decree. Additionally, they can advise you on how to handle future tax-related disputes.

In summary, you can take steps by contacting the IRS, providing them with your divorce decree, and ensuring your ex-spouse amends their tax return if necessary. If the issue persists, seeking legal counsel is advisable to help resolve the dispute and enforce the terms of your divorce decree.

Disclaimer: This response is for general informational purposes only and does not constitute legal advice. For personalized guidance, please consult a qualified attorney licensed in New York.