Tag Archives: family law melbourne fl

Claiming Children Dependents on Federal Income Taxes – The Importance of Waivers

As tax season approaches, recent United States Tax Court decisions have shed important guidance on parents who intend on claiming their child or children as dependents on their federal income taxes. This is especially important for divorced or unwed couples who have a minor child or children in common and have not entered into an agreement that addresses the ability of either parent to claim the children or child as a dependent on the parent’s federal income taxes.

Taxpayers are allowed a dependency exemption deduction with respect to their dependent children. In the case of divorced or separated parents, the exemption is allowed only to the parent having physical custody for the greater portion of the year, unless the custodial parent waives that right to the noncustodial parent with a signed release, to be attached to the noncustodial parent’s tax return. See I.R.C. §§ 151, 152(e). The amount you can deduct for each exemption has increased for 2015 taxes. It was $3,950 for 2014. It is $4,000 for 2015.

In August of 2015, in the case of Hiram L. Porter v. Commissioner, the United States Tax Court denied a dependency exemption to a father because he could not produce a waiver signed by the mother. A court order signed by the judge awarding the father the ability to claim the child as an exemption. However, the Tax Court found that this court order, only signed by the judge in the parties’ divorce case, did not meet the statutory requirements.

The parties in the referenced case were married and had three children from their marriage. In 2002, the husband and his former wife’s marriage had been dissolved by a Florida court by the entry of a final judgment of dissolution of marriage. The final judgment embodied and incorporated the terms of the parties’ mediated agreement reached by the then-divorcing spouses. The judgment specified that the mother was to have majority timesharing/custody of all three children and was entitled to claim the oldest and youngest children as dependents for federal income tax purposes.  Per the parties’ mediated agreement, the father was entitled to claim the middle child as a dependent. The final judgment dissolving the parties’ marriage was signed by the trial judge, but not by the father or the mother.

The father attempted to electronically file his federal income tax return for 2010. Without his knowledge, the mother had previously claimed all three children as dependents on her 2010 return, which caused the Internal Revenue Service (I.R.S.) to reject the father’s electronic filing. The father then submitted a paper return, mistakenly claiming his youngest instead of his middle child as a dependent, and also claimed head-of-household filing status and a child tax credit. He did not attach I.R.S. Form 8332, Release of Claim to Exemption for Child by Custodial Parent, or any other document signed by his former wife, stating that she would not claim either child as a dependent – i.e., a waiver. The father later tried to correct his error in claiming the youngest rather than the middle child, but this did not change the fact that the mother had not provided him with a signed waiver, and had herself claimed exemptions for all three children, despite this conduct being in violation of the court’s final judgment dissolving the parties’ marriage and their mediated settlement agreement. The father took the issue to the Tax Court.

The father argued that the Florida court order signed by the judge, awarding him the dependency exemption with respect to the middle child, should meet the requirement for a waiver. However, the Tax Court held otherwise, explaining that the applicable statute requires that the waiver be signed by the custodial spouse with the right to the exemption, and the signature of the judge alone does not suffice. The Tax Court stated that it was bound by the wording of the statute to deny his claim. The Tax Court further held that because the dependency exemption was denied, the father’s claims for head-of-household filing status and a child tax credit were also denied, because those tax benefits turned on the existence of a valid dependency exemption.

This decision provides guidance to any parent intending on claiming their child or children as a dependent on their federal income taxes that court order that is not signed by the custodial parent will not satisfy the express statutory requirements of I.R.C. § 152(e)(2)(A). The requirement for a signed waiver from the custodial parent was enacted with the intent to keep the I.R.S. out of disputes between divorced and separated parents on the subject of claiming their minor child or children as dependents on their federal tax returns. But the problem is that, although a divorce or paternity judgment or order may purport to award an exemption to one parent, the award is not self-enforcing and the court order by itself has no effect in the eyes of the I.R.S. As such, a parent can decide to sign a waiver or simply refuse to sign any waiver for the other parent.

In the case of Porter, the only remedy Mr. Porter had was to take this matter to the Florida court to ask it to enforce the court’s previous order and have his former wife to execute the required written waiver. In consideration of the 2015 exemption value of up to $4,000.00, this is one thing parents who can claim dependents need to be aware of these important implications.

John V. Moore, Esquire

Morgan & Barbary, PA,

Greater Melbourne, Florida and Brevard County,


Link to I.R.S. Form 8332: https://www.irs.gov/pub/irs-pdf/f8332.pdf

Internal Revenue Service Circular 230 Disclosure: In compliance with IRS requirements, you are on notice that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

The information in this website is not offered as legal or tax advice. Examples of tax benefits or tax implications are based on the stated IRS Guidelines and on other assumptions which may not apply to your personal situation at the time of your gift. We suggest that you seek the advice of your tax advisor, attorney, and/or financial planner under all circumstances.

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Do Grandparents Have Rights to Visitation With Their Grandchildren?

The United States Supreme Court has ruled numerous times that the liberty of parents to direct the upbringing, education, and care of their children is a fundamental right. Cases in Florida have recognized this notion and cite that it is the recognized the ultimate right of parents to make decisions concerning the care, custody, and control of their children. The basis for these rulings is due to the state’s emphasis on the parents’ right to privacy.

However, Florida recently enacted Florida Statute chapter 752 which permits grandparents and great-grandparents visitation rights under very limited circumstances. Under F.S. 752.011 (2015), a grandparent of a minor child who has either both parents deceased, missing, or in a persistent vegetative state, or whose one parent is deceased, missing, or in a persistent vegetative state and whose other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the minor child’s health or welfare, may petition the court for court-ordered visitation with the grandchild under this section.

Upon the filing of a petition by a grandparent for visitation, the court shall hold a preliminary hearing to determine whether the petitioner has made a prima facie showing of parental unfitness or significant harm to the child. Absent such a showing, the court shall dismiss the petition and may award reasonable attorney fees and costs to be paid by the petitioner to the respondent.

If the court finds that there is prima facie evidence that a parent is unfit or that there is significant harm to the child, the court may appoint a guardian ad litem and shall refer the matter to family mediation as provided in s. 752.015. If family mediation does not successfully resolve the issue of grandparent visitation, the court shall proceed with a final hearing.

After conducting a final hearing on the issue of visitation, the court may award reasonable visitation to the grandparent with respect to the minor child if the court finds by clear and convincing evidence that a parent is unfit or that there is significant harm to the child, that visitation is in the best interest of the minor child, and that the visitation will not materially harm the parent-child relationship.

The constitutional right to raise a child without interference from the State or any person is very well protected in Florida. Courts are reluctant to interfere with the rights of parents to decide who can see their children. Florida remains one of the most restrictive states concerning grandparent visitation rights but as time goes on the legislature does seem to move towards a direction of affording grandparents visitation rights in extremely limited circumstances.

John V. Moore, Esquire

Morgan & Barbary, PA,

Greater Melbourne, Florida and Brevard County,



We’re Honored to be Your Melbourne Truck Accident Attorney

At Morgan and Barbary we are committed to providing our clients with competent, effective legal representation in several areas of practice. We are aware just how devastating trucking accidents can be and we are prepared to fight for your rights.

As your Melbourne truck accident attorney, we have seen what the aftermath of a tractor-trailer accident can do to your entire family. Because of the sheer size of the involved vehicles, a crash between a commercial vehicle and a passenger vehicle is much more likely to cause death than two passenger vehicle crashes. We are dedicated to your recovery in three aspects: physical, mental, and financial. We believe that you should be compensated fully for your losses endured as the result of a commercial truck accident.

If you or a loved one has been the victim of an unfortunate trucking accident, then we would be honored to serve as your legal representation during your recovery process. Contact your Melbourne truck accident attorney today about getting started on your case.


Happy Thanksgiving from Your Melbourne Attorneys

As your Melbourne attorneys we are excited to celebrate the upcoming holiday season. Thanksgiving is just around the corner, and we hope that you will get to enjoy the holiday with your friends and family. We remind you that the holidays can be a scary time for driving on the road, and encourage you to practice aware and safe driving.

As your local legal problem solvers we are grateful for each and every one of our clients we have had the pleasure working with throughout 2014. Whether you came to us for personal injury, criminal defense or family law—we’d like to thank you for your loyalty as our client. While the holidays are certainly a time to be grateful for what we have, we also need to be mindful of the dangers around us. Driving on the road during the holidays can lead to disaster and we remind you to remain aware.

Your Melbourne attorneys wish you a very happy Thanksgiving and remind you to stay safe on the roads throughout the upcoming holidays.