IRS FORM 8332

[Wisconsin Mom]

The custodial parent has signed off (in 1997) on the IRS Form 8332 releasing the "claim to Exemption for Future Years" by stating "ALL FUTURE YEARS" in the space so designated on the form.

A stipulated court order was put into place at that time where the non-custodial parent was given the exemption every year (rather than every other).  The order stated that the custodial parent needed to complete form 8332 but did not stipulate that she needed to fill it out for "all future years."

The custodial parent has now served the non-custodial parent with court papers for (amoung other things) return of the tax exemption to her.

This is a Wisconsin case.

1) Because the custodial parent has signed off on any future claims (with respect to the IRS), does a judge now have authority to "order" that the the exemption can revert back to the mother?

2) In this situation, is there any way that the non-custodial parent can "lose" the exemption --other than if he voluntarily gives it up?

Thank you for your help.

[socrateaser]

>1) Because the custodial parent has signed off on any future
>claims (with respect to the IRS), does a judge now have
>authority to "order" that the the exemption can revert back to
>the mother?

I think you may be into the area of "new" law here. I don't believe there is any precedent. The general rule is that any part of a final judgment, that is NOT in the "nature" of child support or custody, is final and not subject to later modification, absent showing of fraud, duress, mistake or illegality.

But, an order fixing a tax exemption in favor of one parent, is not necessarily in the "nature" of support, because it doesn't directly impact the amount of support due the child(ren). However, it does indirectly impact the amount of money available as income for determining support, so on this basis, a court might decide to modify the order.

As for the IRS form itself, it is irrelevant, except as a method of informing the IRS of your choice. The IRS won't hold you to an irrevocable choice, because the court order overrides federal law, under federal law.

So, get ready to make a good legal argument, because you're gonna need one.

>
>2) In this situation, is there any way that the non-custodial
>parent can "lose" the exemption --other than if he voluntarily
>gives it up?

See above.