Tuesday, May 21, 2013

Can a Matrimonial judge overrule Federal Law?

Q: In the Decision After Trial, the judge granted my ex the right to deduct our youngest child on his taxes. I never signed the IRS form, and was not required to in the Decision. Now its years later, and I provide the majority of support, have sole custody and there is no visitation. He is suing me for deducting the youngest. The IRS office says I am in compliance. Does the Decision supersede Federal Law? Please respond - I am back in court tomorrow.

A: David's Answer: It's not so much that the Judge is "overruling" IRS regulations. It's that the IRS regulations - which say the custodial parent is generally entitled to the deduction for the children - merely sets up a general rule. State Judges are then allowed to make decisions/orders which make an exception to that general rule. If there was an order in place and you violated, then you should do 1 of 2 things or both: (1) file an amended return, and/or (2) file a modification petition requesting a re-consideration of the deductions (and/or an upward modification if more than 3 years has passed since the Judge's prior decision). For a full assessment, I suggest setting up a consultation with a Westchester Child Support lawyer. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

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