Next Step Question

[NWMom]

Hi Soc,

About two weeks ago I asked you for help in drafting a letter to my ex husband to sign the IRS tax for for tax exemptions.  As previously stated I have the court order from last July allowing me to do so.

I have sent the letter and to no avail no response.  However that did not surprise me.  My questions are:

1) Since I have a court order this should be a simple process and I would like to not incur any more lawyer bills in this state (WA) since I am up to my eyeballs with leagal fees in the state of CA with our current custody dispute. WA maintains financial jurisdiction.  Therefore could I go pro se on this?

2) If I go Pro Se what is my next step? ( what do I file?)

3) I would rather not go for contempt since the courts in WA already denied me contempt with a lawyer representing me for him leaving the state of WA illeagally!!!!!!  I'm still hot about that one. How else can I get the court to enforce the order by making him sign the IRS form?

[socrateaser]

>1) Since I have a court order this should be a simple process
>and I would like to not incur any more lawyer bills in this
>state (WA) since I am up to my eyeballs with leagal fees in
>the state of CA with our current custody dispute. WA maintains
>financial jurisdiction.  Therefore could I go pro se on this?

Anyone can legally represent themselves in court, but I can't say if you have the skill or not -- only you can determine that.

>
>2) If I go Pro Se what is my next step? ( what do I file?)

I don't know WA civil procedure. If you have your contempt documents from the prior case, then you could use them as a template. Basically, you

>3) I would rather not go for contempt since the courts in WA
>already denied me contempt with a lawyer representing me for
>him leaving the state of WA illeagally!!!!!!  I'm still hot
>about that one. How else can I get the court to enforce the
>order by making him sign the IRS form?

There is no other way, except to move for contempt.

[wendl]

NWMom,

I am in WA as well.

this is what happened with my sister, in her court order she gets to claim ALL the kids, her ex decided one year to claim them and so did she. It took 2yrs for the IRS to fugre it out, and they did an audit on both parents, sister showed the court order, and all her financially records etc to the IRS, the IRS wanted her and her ex to prove who provided 50% or more of the financially responsibliity for the kids, and her ex ended up having to pay back 2yrs of interest plus the refund he got.


You can file contempt against the other parent for this, go to
http://www.courts.wa.gov/


click on forms and it will walk you thru how to file and complete the paperwork for contempt.

Hope this helps a little.
:)

**These are my opinions, they are not legal advice**

[NWMom]

Check your PM =) Thanks

[NWMom]

Hi Soc,

Thanks for the advice... I just feel that there has to be another way for these documents to be signed.  I am going to call the court house facilitator for advice on how to proceed in WA state.

You are probably correct that contemp is the only way, but I would rather have another solution... perhaps dispute resolution?

[wendl]

You have mail.


**These are my opinions, they are not legal advice**

[NWMom]

Well the same thing happened to me already!  I was audited this year for the last two years becuase I claimed the children.

I showed up to my audit with my court orders in hand...  They were sympathetic, but they had to go by the rule.  The rule being .... unless you have the signed IRS form they will not give the exemptions to you!

My ex lives with his mother.  She took the children as the exemptions and because the IRS figures the 50% rule by how many people in the house (not how many kids you  have) there was no way I could proove that I pay for more then 50% of all the occupants in the house.

The occupants of the house were Grandma, Ex Husband, our 3 kids, two other grandchidren from another family, 3 cousins.  Which equals 10 dependents.  Now the IRS has to figure food for all of them and the cost of living for all of them.... and bingo I lose the exemptions because my support only supports the 3 kids!!!!  

It was the most insane rule I have ever sat and listened to!

So beware to all... If you do not have this form signed do not think your court order will help you because it wont!  The IRS will not honor a court order.

[socrateaser]

If by dispute resolution, you mean mediation -- mediation is non-binding and your ex can participate in the process and smile and sound cooperative, and then refuse to sign the form, and you will be exactly where you are right now.

By all means, contact the court facilitator's office -- if they help you fill out the contempt forms, that would be great.


However, if your goal is to have the court order your ex to sign IRS form 8332 at the threat of imprisonment for contempt or monetary sanctions made payable to you for every day that he refuses to sign, then the only way that will happen is via a motion for an order to show cause for contempt.

[NWMom]

Hi Soc,

I understand.

1) Should I wait until I have enough proof of him refusing?  The letter you helped me write I sent, but not certified.

2)  I plan to send another letter certified Monday. Should I send the same letter again?

3)  If not could you help me with the second letter?

4) Since he is out of state do I have to have him served or can certified or Registered, etc.  Work as well to prove to the court he is aware of this court order. (Remember he is out of state)

Last time we were in court in WA he claimed total ignorance of any orders and they let him off the hook.  I do not want a repeat of that.

[socrateaser]

>1) Should I wait until I have enough proof of him refusing?
>The letter you helped me write I sent, but not certified.

Well, since a contempt order requires "clear and convincing proof," I'd say you need to have some objective proof that he actually received your notice. To that end, I would have someone who is willing to testify in court, sign a proof of service by mail certificate (same as you would use serving any civil process), and then mail the letter for you, by certified mail. I would get a certified mail receipt first and transcribe the number on the receipt into your letter -- that way there will be absolutely no mistaking the fact that you have notified him.

Having said all that, it would seem that your battle with the IRS should have already provided you with enough hard evidence to show that he refuses to sign the document. Because, if your court order instructs him to sign, and he filed for the exemption, then that means he must have not signed, because his tax return is signed under penalty of perjury, and so would be form 8332. So, if he took the dependent exemption on his return and under oath, then he must not have signed the form, or, he committed perjury on his tax return. Get it?

But, to be clear, contempt requires (1) a valid enforceable court order, (2) knowledge of the order, and (3) willful failure to obey. So, if your judgment told him to sign form 8332, the he's had notice (and knowledge) already, letter or not. So, you don't need to send him anything in order to prove contempt. All you need is a copy of the judgment where it says to sign, and then your documents from the IRS showing that you were denied the exemption because you don't have a signed form. From those facts a court could infer that he has refused to sign, and thereby willfully failed to obey.

Finding for Plaintiff (you); conclusion, contempt; penalty $100 per day, made payable to plaintiff for every day that Defend fails to sign the form, plus costs of suit and reasonable attorney fees, and reimbursment for any out-of-pocket costs reasonably related to your difficulties with Internal Revenue Service.

His only out would be that he signed and you never submitted the form to the gov. Um, I don' think a judge would buy that one.

Anyway, send your letter, but get a copy of the tax return in question and all of the IRS documents, because that will seal it.

>
>2)  I plan to send another letter certified Monday. Should I
>send the same letter again?

Same letter is fine, as I recall, just put a line before the Dear X, as follows:

Original by U.S. Certified Mail #???

>
>3)  If not could you help me with the second letter?

See above.

>
>4) Since he is out of state do I have to have him served or
>can certified or Registered, etc.  Work as well to prove to
>the court he is aware of this court order. (Remember he is out
>of state)

Already answered above.