Posted by Gregg on 5/06/11

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This is a sticky situation. When my ex-wife and I got
married 4 years ago, me and my 2 kids moved into her house.
We never refinanced the mortgage so the mortgage has always
been under her name. When she decided she wanted ti divorce
and move back to Colorado, she wanted me and the kids to
keep the house. She did a quit claim to ADD ME to the title
but did not remove herself. So the mortgage is under her
name but the title is under both of our names.

In our divorce decree is states that HUSBAND (ME) is
responsible for the mortgage payments, insurance, HOA dues,
repairs, etc. She felt she was entitled to something for
all of the years she had put into the house prior to me
moving in so she had a letter attached to the decree, and
recorded with the court, that she gets to claim the mortgage
interest until I am able to refinance and have her name
taken off the mortgage and title.

I spoke to the IRS and was told this was wrong. They had me
take a "means test" and based upon my answers they said she
is NOT entitled to claim the mortgage interest and that I
am. A divorce attorney disagrees. Here are the facts and I
am hoping someone will know the answer.

The mortgage is under my ex-wife's name.
The title to the house is under both of our names.
She moved to Colorado last October and has established legal
residency there.
She is not "renting" the house to me.
I pay the entire mortgage, from which the insurance is paid
for from the escrow account.
We are both legal US residents.
I have claimed a portion of the house for home office purposes.
My and my 2 kids physically reside in the house.
The mortgage payments I make go directly to the mortgage
company and not her.

Despite us adding the wording about how she can claim the
mortgage interest, the IRS said that federal tax law
supersedes whatever wording we may have added. The reason I
am debating this with her now is over another, unrelated
issues where an insurance claim check that was to have come
to me for household repairs was sent to her and she spent
the money. That is a whole different issue that can be
discussed later.

So who legally gets to claim the mortgage interest. Her?
Me? If me, can she try to hold me in contempt even though
the decree was written in possible violation of tax law?

Who Gets To Claim The Mortgage Interest?, 5/06/11, by Gregg.

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