Court Ordered Exemptions and the IRS

January 10, 2012 by Jan Roberg
Filed under: Divorce 
My Trusty Gavel

Photo by Brian Turner on flickr.com

I have to start with the disclaimer first: I’m an enrolled agent, I’m licensed by the Department of Treasury to represent persons before the IRS. I am not an attorney. According to the rules of my license, I am not allowed to give legal advice. But I get to talk about taxes until I’m blue in the face!

Why the disclaimer? Because if you’re a divorced parent, you may have to deal with a court order that outlines who can claim your child’s tax exemption. But the IRS has its own rules about who may claim a child’s exemption, and sometimes the courts and the IRS don’t agree.

Here are the IRS rules:

  • If your divorce decree went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree to the tax return to claim the exemption as long as the decree has no conditions (like paying child support) instead of requiring the custodial parent to sign a form 8332 (release of exemption).
  • If the divorce decree or separation agreement is after 2008, then the custodial parent must sign a form 8332 for the noncustodial parent to claim an exemption.

Can see how this can be tricky? If you don’t sign the 8332 form , and your ex doesn’t have the proper divorce decree documents, then your ex doesn’t get the exemption as far as the IRS is concerned. You’re going to win this one on the IRS battlefield. You may have to take it to the battlefield, but if you do then you will win.

But what does a person do when there’s a court order for her spouse to claim the exemption on the children, but the husband has no right to claim the children as far as the IRS rules are concerned? What do you do if a local judge says, “You’ve got to let your ex husband claim your children for taxes? I order you to sign the 8332 form.”

I spoke with a local attorney about what could happen to a person who followed the strict IRS rules and claimed the children’s exemptions for herself when the divorce decree allowed the spouse to claim – the answer I got was to have the person call her attorney. You see, the IRS rules are all about how the IRS will settle the issue. I’m an expert at how the IRS will settle the issue. But if you’re dealing with a court order, and if your ex decides to take you back to court to enforce the exemption rule, and you defy a court order to allow him to claim the exemption, then it’s quite possible for you to see the inside of a jail cell. I don’t want anybody reading this blog to wind up in prison. So even though you should win a tax case, you should really talk to your attorney before you go against your divorce or custody decree. Make sure that you’re within your rights in your jurisdiction.

If you are the custodial parent and you are required to let your ex claim your children, remember that the exemption only includes the exemption and the child tax credit. As the custodial parent, you keep the Head of Household designation, the Earned Income Tax Credit (if you qualify), and the Child Care Credit (if that’s relevant.) See my post about splitting a child’s exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

If your ex claimed your child and shouldn’t have, read my post, “My Ex Claimed My Kid” for tips on how to fight back: http://robergtaxsolutions.com/2011/01/my-ex-claimed-my-kid-now-what-do-i-do/

Divorce is tough on everyone. It’s really tricky when you’ve got federal and state rules that don’t always mesh together either. The bottom line is that the IRS does not want to be involved in domestic disputes. If your divorce decree says that the Dad will pay child support and claim the exemption while Mom has the custody, then the IRS does not want to get involved in whether or not Dad paid that child support. That’s why the IRS rules are the way they are. Basically, they’re kicking that issue back to the local jurisdictions. If Dad wants Mom to sign the 8332, then his child support should be paid up to date. If Dad’s done everything right and Mom is still refusing to sign the 8332, then the IRS is saying it’s not their problem – Dad can go back to court and work it out from there-locally.

We used to have a saying when I was a kid: “Don’t make it a federal issue.” I don’t remember where we got it from, probably some TV show. I just remember we just always used to say it. But that’s kind of what the IRS is saying to divorced couples claiming their kids today, “Don’t make it a federal issue.”

If you’ve got a situation where the IRS rules and the court rules don’t line up, do consult your attorney about how your situation can, will, or should be handled.

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Note:  We try to answer all the questions that come to us but please be patient.  It’s our busy season right now.  We may not get to your post until the weekend.  When you make a post and use the capcha code, it won’t immediately show up.  You see, for every normal person like you that posts, there’s about three advertisements for things your mother wouldn’t approve of.  (We try to keep this a G rated website.)   We have to edit those out.  If you need an answer right away, here are some links that might help:

EIC questions of any kind:  http://www.irs.gov/Individuals/Earned-Income-Tax-Credit-(EITC)-%E2%80%93–Use-the-EITC-Assistant-to-Find-Out-if-You-Should-Claim-it.

How to find free tax preparers:  http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers

How to find your local IRS office:  http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1

If you want to hire us, please call (314) 275-9160 or email us.  We do prepare returns for people all over the country (and a few foreign countries as well.)  We are sorry but we cannot prepare an EIC return for someone outside of the St. Louis area because of the due diligence requirements.

Comments

276 Comments on Court Ordered Exemptions and the IRS

  1. Literally on Sun, 11th Mar 2012 11:33 am
  2. This is an amazing article and the only one that I have found that addresses my concerens exactly. To The “T”.

    Divorce ocurring after 2008. – this requires the MOM to sign a form 8332 so that the Non custodial aka “%^&$#” can file. This means he has not filed yet because the MOM I am helping has not even been asked for this release form.

    Judge, in all his wisdom, wrote 1 small statement about taxes – Non custodial parent shall have all 5 children for the dependency exemption for state and federal income tax.
    He left no other words for the matter.

    Now here is the real kick in the pants and the reason I am here. EIC cannot be claimed by the non custodial anyway, Even if the kids did live with him because his income is to hi by far. The Eic is available for the custodial parent “MOM” to claim as is the child care credit.
    HOWEVER! the difference in fileing EIC with the kids marked as dependents and the kids being marked as nondependent only use as “EIC and child care credit” is a Remarkable sum, nearly ten times the difference. This is due to the EIC being rated on the scale of AIG of the MOM, the AIG is really High for her because the standard deductions is all she can claim since the non custodial parent was awarded all of the property deductions. IE, house, insurance, and all accounts were all written up so thatthe non custodial parents name was never on them, this was premeditated years before.

    so the “NONDEPENDANT – lived with you all all year Long” choice in the 2011 tax form for all the children makes the 3700 dollar per child credit not happen, so nearly all of moms income is considered taxable income making EIC for 5 children a grand total of Less than 500.00 and the child tax credit not available for the custodial at all so that is ZERO dollars.

    If the dependent – lived with you all year long were chosen, the taxable income will drop the custodial parents AIG enough to qualify for nearly maximum EIC.

    in other words,which is making me ill to say, the tax credit the non custodial gets will be around 5,000.00 and no EIC will be available to him.

    while the custodial parent gets around 480.00 EIC for all the kids. and Very minimal child support. It’s amazing to me that this could happen to a woman and 5 kids in this day and age.

    all that has to happen is to choose the dependent over the nondependent. and boom everything seems to right it self.

    Amazing what a judge can do to 6 peoples lives with just a 20 word sentence.

    I have been trying to find a way for the cusstodial to get around this problem and other than going back to court to get it changed or face the music for non compliance. It’s such a lot of money over such a large amount of years.

  3. Admin Roberg on Sun, 11th Mar 2012 7:18 pm
  4. @Literally,
    Yep!
    I think that people who are going through a divorce need to talk to a tax specialist in addition to talking with their attorneys. As you’ve witnessed first hand–being able to claim EIC doesn’t help you if you’re income is high. Being able to claim head of household doesn’t help you if you’re married. And I’ve seen some divorce decrees that say the non-custodial parent can claim the EIC–which is, of course, against the law.
    I’m thinking you’re going to be headed back to court over this one. Sorry.

  5. ckpatrick on Fri, 6th Apr 2012 8:02 pm
  6. My divorce was in 2009 and my decree says my ex husband will claim the children as long as i get EIC so hes been doing it ever sense the divorce. i have never been aware of the form 8332 until this year and hes somehow been claiming our kids without my signature. how is he able to do that, does he have a right to claim our kids sense he has a decree stating he can? even though our divorce was in the 2009. i just dont want to get in trouble with the court. i am not currently working at the time but was told as long as i have full custody of our children and they have lived with me over half the year i am able to claim them. my main issue is will i get in trouble with the courts if i do claim them even though the divorce was in 2009? i would appreciate an answer asap, as i have to decide what to do before the tax time is up, which will be for me monday because i have to do my taxes at the library and the last day is this monday april 9th. thank you for all your help i appreciate it

  7. Admin Roberg on Sun, 8th Apr 2012 2:10 am
  8. @ckpatrick–
    You can claim your kids for head of household and EIC and allow your ex to claim he exemption. Technically, you should be signing the 8332 form, but if you haven’t tried claiming the exemption, it probably hasn’t come up as an issue.
    Remember–your decree lets you claim EIC and head of household–don’t claim the exemption–that’s what your agreement allows.

  9. mag on Thu, 17th May 2012 10:49 pm
  10. Hey what about when there is a court order for IRS refund to go to the ex wife ? That happened to me. I went in person to the IRS and they told me i had to go to the lawyer who divorced me, and the lawyer is supposed to send the IRS a withholding statement for IRS refund to go to me for money he owed me for 3 years back.. But the lawyer tells me to send my divorce decree to the IRS. The IRS sends me back to the lawyer. What do i do now????????

  11. Admin Roberg on Fri, 18th May 2012 1:32 am
  12. Hi Mag,
    Wow! So you’ve got a court order for the IRS refund to go to the ex wife? My only experience with that is when a person owes back child support. If you owe back child support–well, then I can’t help you (unless you’re married and your new wife files an injured spouse claim.)

    But other than the child support issue, I’ve never dealt with them sending a refund to the ex wife. Sorry but it’s out of my league. You might want to try a new lawyer. I wish I had more for you but I’m afraid I don’t.

  13. Amy on Fri, 1st Jun 2012 1:51 am
  14. Hello, I have a question for you. I am divorced and we had 6 children 20-8. We divorced in Nov of 2009. We have joint custody, so to speak, he only has them 4 hours on Thursdays and every other weekend 6pm Friday-9pm Sunday. No vacations or any other time. So clearly I have them a majority of the time.

    Before the divorce was final, I called the IRS, as BOTH LAWYERS AND THE JUDGE INSISTED HE COULD CLAIM EIC, and the IRS told me that he, as you stated above, was not allowed to claim EIC, just the deductions. I had always done our taxes, so I passed along the info trying to make sure he had no problems, trying to be civil really. I have found out, as he likes to rub things in, that he has claimed EIC for the last 3 years. He says H&R Block as well as another tax preparer told him he is legally allowed to claim EIC and that those rules dont apply to him. The vacations with the new wife using the EIC without our children or doing anything for them kinda of rubs me wrong, but I digress.

    My concern is this, we are supposed to switch children back and forth to keep it even, however will I eventually end up getting an audit of sorts due to a child being claimed by 2 different people for EIC, even if NOT in the same year? I struggle so much as I can not work full time due to a back issue and he pays barely any child support, I really need the tax return each year ASAP to pay bills, buy shoes, clothes, car repair, etc. Lets put it this way, we dont save change it goes into the gas tank. Is there a way to avoid having this happen? Should I report him? Again, I am not trying to be mean or anything, its just that an IRS audit sounds kinda crappy and not much fun, and like I mentioned above, I am barely making it.

    Thank you for any advice. Have a delightful evening.

  15. Admin Roberg on Tue, 5th Jun 2012 2:55 am
  16. Hi Amy,
    Thank you yes, I will have a delightful evening. But first, let me get on my high horse and spout off a bit.

    As a former instructor for H&R Block, let me assure you that H&R Block does not condone EIC tax cheats. H&R Block tax preparers are trained that a person cannot claim EIC if the kids do not live with them. And if someone doesn’t grasp that concept–they flunk my tax class. If you flunk my tax class–you do not work for H&R Block.

    Granted–I haven’t worked for Block for quite some time and we don’t always maintain the best relationship–but–giving credit where credit is due–H&R Block as a company knows how to do EIC. So–either your ex is lying or he got a dumb preparer who should be fired.

    Seriously–the fine for negligently preparing an EIC return is $500. Block doesn’t like to pay those. So if that preparer hasn’t already been let go–well, he will soon.

    Okay, let me calm down now.

    Here’s the thing: You get to claim EIC every year. Thurdays and every other weekend do not add up to “more than 6 months” of the year. So, your ex doesn’t get to claim EIC. Too bad, so sad. It’s federal tax law. You are the custodial parent, the children live with you for more than 6 months out ofthe year. It doesn’t matter how much child support he pays–he can’t claim EIC. And this is where I’m 100% absolutely right.

    Your divorce decree can only give away exemptions, it can’t give away EIC. It’s a tax law. Your divorce decree can’t change tax law. That’s like saying, “my divorce decree says that I can claim an exemption of $6000 instead of $3700″—–you can’t change federal tax law with your divorce decree. Tax law comes from an Act of Congress.

    So, don’t be afraid of the audit because you’re in the right. Is it fun? No. I don’t like going to the dentist but I go anyway because it’s good for me. And claiming tax credits that are going to put food on the table for your children is good for your family. Keeping tax money away from tax cheats is good for the country. EIC is meant to help struggling families keep a roof over their heads. It’s not meant for fancy vacations.

    Okay, now I’m done spouting off. I think I’ll go watch some TV and have a cookie. And that will be delightful!

  17. Amy on Tue, 5th Jun 2012 3:18 am
  18. Thank you so much… I guess, even though eventually it will even out, I really like to avoid it.. You know like your dentist analogy. I wouldnt put lying past him, as he and the new wife have defrauded unemployment as well. Thank you again for you time. Oh and your right a cookie and a nice tv show does sound like a nice evening. ; )

  19. Jan Roberg on Tue, 5th Jun 2012 5:55 pm
  20. Hello Amy and anybody else this relates to,
    The courts and tax issues. I just came across this blog post in “Tax Pro Today” –I know, really exciting reading–but I immediately thought of Amy and some of the other folks who posted items here. The article is about how judges and attorneys don’t know the tax law when they issue some of their court orders. It just proves that I’m not making this stuff up. Here’s the link: http://www.accountingtoday.com/news/Courts-Tax-Laws-62828-1.html?ET=webcpa:e2577:299369a:&st=email&utm_source=editorial&utm_medium=email&utm_campaign=tpt_060512&taxpro

  21. Amy on Thu, 7th Jun 2012 5:59 am
  22. Thanks for posting, plan to read in just a few, as soon as I chase some straggling kids to bed.. : )

  23. Tammy on Tue, 26th Jun 2012 12:19 am
  24. I am in the state of Ohio. My daughter graduated June 2, 2011, from high school and she turned 18 on June 23, 2011. My divorce decree states that father deducts her on odd years for taxes and I deduct her for even years. When I filed my tax return this year for tax year 2011 my tax preparer stated that I could deduct my daughter since she reached the age of majority for my state and was considered to be emancipated in June 2011, I am the primary custodian and have also provided health/dental insurance for my daughter since she was born. The last support payment was May 31, 2011. My daughter started her freshman year in college August 2011 and finished in May 2012. On my daughter’s birthday this year, June 23, 2012, I received a certified letter from my ex-husband stating that he tried to file his return and his CPA stated it was kicked back because I claimed her. His letter also states that he is giving me 10 days to correct this so he can claim her or he will file a refusal document with our court to state that I did not follow the order in the divorce decree. Since my daughter was emancipated in the year 2011 and she lived with me the entire year and went to college during that time with my address as her residence, and since my daughter was considered emancipated during that year, doesn’t that mean she is not bound by the divorce decree and that I should be able to claim her for 2011? I have not filed Form 8332 and just learned what it even is. My decree also has a condition that he be timely and up to date in child support payments. He has offered zero assistance with college for my daughter in any way. Thank you in advance for any assistance you can provide.

  25. Admin Roberg on Thu, 28th Jun 2012 6:54 pm
  26. Hi Tammy,
    I hit the books on that one. IRS Publicatioon 504 to be exact. (Because you want to know where I’m getting my information from.) Here’s a link: http://www.irs.gov/publications/p504/ar02.html#en_US_2011_publink1000175907

    And actually, here’s the link to the section on divorced parents: http://www.irs.gov/publications/p504/ar02.html#en_US_2011_publink1000175907
    That’s where it talks about emancipated children.

    So, here’s the scoop, if your child was emancipated before July 1 of the tax year (which is yes in your case) then the child counts as not living with either of you. That means, that you cannot “give up” the custodial rights to your ex-husband becasue they are not yours to give.

    Now, you may still claim your daughter–because she qualifies for you to claim her as a dependent in all other regards–you just are not allowed to give her exemption away any more.

    Now, had your daughter’s birthday been in August–different story–because it would be after the 6 month point–but since her birthday is in June–you’re good.

    I gave you the links to the IRS publication so that you’ve got some back up. I’m trying to get a second opinion for you (just to be safe) but going by the IRS publication 504, I think you’re good. I’ll make another post when I get another answer, I just didn’t want you waiting too long.

  27. Admin Roberg on Thu, 28th Jun 2012 7:32 pm
  28. Hey Tammy,
    I’m back again. I got a second opinion from the IRS–I did get one part wrong–I said if your child was emancipated before July 1st and I should have said July 2nd. That 24 hours might be important to someone so I’m making the correction.

    Also, while I used publication 504 to back up my statements, the IRS representative used Publication 501, page 13 to back up hers. They say exactly the same thing. But now you’ve got a second opinion, and a second IRS publication to back you up. :)

  29. Ada Isaksson on Tue, 3rd Jul 2012 5:56 pm
  30. Here’s one for ya. I have non-parental custody of a child, neither parent has visitation or any type of custody. Washington state judge ruled that the child’s father gets tax exemption odd numbered years, even though I proved that the father cannot claim child because federal law states the child must be in the physical custody of one or both parents for a parent to claim and it also states that on form 8332, but Judge denied my motion for reconsideration even though the law clearly shows neither parent can claim child. So all of us out there raising other peoples kids are getting the raw end of the deal and Judges are breaking federal law. I am on a mission to change this in Washington State. Any help would be greatly appreciated.
    Ada

  31. Admin Roberg on Wed, 4th Jul 2012 5:18 pm
  32. Ada,
    You know you are right. Let me say it again–ADA! YOU KNOW YOU ARE RIGHT!!!!!!

    Don’t know if that helps, but I wish it did. I was just on the phone the other day with the IRS about a case somewhat similar to yours. And on behalf of my new IRS agent friend, let me say on her behalf, ADA, YOU ARE RIGHT!

    We had a nice discussion about when federal law trumps state law–such as in your case–you are the right person to claim the child.

    But you already know you’re right. So how can I help? (No, I’m not allowed to smack judges upside the head. My lawyer specifically forbids it.)

    Here’s the thing–the court document is pretty worthless. The father can’t get a signed 8332 because the mom doesn’t have custody. The IRS won’t honor the court decree. You can’t sign the 8332 though because you;re not the biological mother. That would be against the law and it seems to me that the judge can’t force you to break the law.

    So–I guess the next part depends upon how much fight you’ve got in you and how much your lawyer costs. (Because I’m guessing that if you do claim the exemption–the father will fight it.)

    I’m not a lawyer, but I wish there was a legal aid society to fight these cases. Because it’s not like the IRS will show up at the trial for you.

    I like your idea about getting things to change. Once you’ve done in Washington can you head over to Missouri? We’ve got the same problem. (I bet there are lots of other places too.) Good luck.

  33. Ada on Tue, 10th Jul 2012 11:39 pm
  34. LOL, Thank You, I wish you could smack this one. I am going to try and do an appeal my self if I can afford it and I am going to start talking to representatives here in Washington and get our law changed. Thank You for the info on form 8332, I had not thought about only the parents could sign it. Gives me a good battle if I get brought back to court. Thank You Ada

  35. Ada Isaksson on Mon, 30th Jul 2012 5:16 pm
  36. I am going back to court end of August for the tax exemption of a child I have custody of. I thought you might be interested in this article from a Lawyer in Oregon/ Lawrence D Gorin. it’s awarding the dependent child tax exemption. Great article he also states in it the Supremacy Clause of the US Constitution Art. 6. might be something you would be interested in reading and posting for anyone having trouble with the State Courts and awarding tax exemption. Thanks for your help Ada Isaksson

  37. Admin Roberg on Tue, 31st Jul 2012 7:53 am
  38. Thanks Ada,
    I’m going to try to find that article. Good luck in court!

  39. Admin Roberg on Tue, 31st Jul 2012 11:40 am
  40. For anyone looking for Ada’s article by Lawrence Gorin, the attorney from Oregon, here’s a link: http://ldgorin.justia.net/article_27-1503896.html
    Thanks for sharing that Ada. It’s always good to have some back up.

  41. Kat on Thu, 23rd Aug 2012 10:41 am
  42. So I have been trying to figure this out for a while but I can only find things for divorced couples. My husband had a child out of wedlock with his ex gf. There is a court order saying he is allowed to claim the child as a dependant, is this really the case? She has been claiming the child so far (can she get in trouble?) . We are just curious about the situation. I have been reading the IRS site and honestly am a little confused. Help would be really appreciated.

  43. Admin Roberg on Fri, 24th Aug 2012 8:48 am
  44. Hi Kat,
    It is confusing isn’t it? I write about “divorce decrees” but it doesn’t say anything about couples who were never married. But—here’s the secret, you follow the same guidelines. If his court order is dated 2008 or earlier, then he can use that paperwork to show he is to claim the dependency exemption. (Remember, he can’t have any requirements, like “father can only claim dependent if child support is up to date”. Anything like that makes it worthless in the IRS’s eyes. If it’s dated after that–then he’ll need the 8332 form. It’s a good idea to get an 8332 form anyway, if his ex will sign it–it makes life easier.
    If the ex won’t sign the 8332 form, and the court document isn’t going to work for him, then you’re stuck going back to court to get the ex to release the exemption. (Might be costly.)
    Remember, your boyfriend can only claim the dependency exemption, he is not allowed to claim EIC because the child lives with the mother. So, if you’re going to go to court over this, remember that the exemption gives you a child tax credit (that’s currently worth $1,000) and a deduction that is equal to the exemption amount (which is $3,700 right now.) Remember, the exemption is a reduction in the amount of tax you pay, that’s not what you get. So if he’s in the $25% tax bracket, the exemption is worth $925. If he’s in the zero percent tax bracket, he gets, zero. It helps to know what it’s worth before you fight for it.

  45. Ada Isaksson on Sat, 1st Sep 2012 3:58 am
  46. Went to court again today and the judge pretty much told me I have to sign form 8332, He wouldn’t hear argument or anything. He said his ruling stands. I now have to figure out how to file an appeal in Washington state without a lawyer. Can’t really afford one. Can’t believe he told me to break federal law. Im the one with non-parental custody, The child enforcement lady was even shocked. Judge never said why, just pretty much told me to leave the court room.

  47. Admin Roberg on Sat, 1st Sep 2012 1:13 pm
  48. @Ada,
    I can’t believe it! Okay, I can believe it, you’re not going to make that up, but really! Sorry, I’m just dumbfounded.

  49. Hollie on Wed, 19th Sep 2012 1:49 pm
  50. My divorce was in 2006 and my x got custody in 2008. In the divorce we agreed on alternate year tax fillings. In 2008 that agreement was not changed when he got custody. I have the child on fri-sun. Now the crap thing is he doesnt even keep the child and there are court fillings that says he doesnt keep the child. I claimed her in 2010 like the divorce decree said I could and I sent a copy in with my filing. The IRS is after me for the money back because he also claimed the child. The IRS says I am not entitled to any return where my daughter is concerned, but it is hard to determine what money is just because I have a second daughter that also gets claimed. I feel that they should be going after him for the money but they say he filed first so he gets the money. I have been trying to dispute my case but I have an amature for a case manager. I have sent in the complete divorce decree that allows me to file even years, I sent the custody order that says he got custody but they tax law did not change in there. I then even sent a letter stating how he has not been keeping the child and I am fighting for custody and that his grandparents have claimed they have been raising the child for him for the past 3 yrs. I need to get this resolved and I cant get anyone higher up to look at it and I need to make sure I do this right on the appeal. I cant afford to pay back the 2000+ they are wanting and I especially cant afford not to get the credits on my other daughter…..ps my taxes were done by a well trusted and qualified account and she cant understand it either…….but we did claim all excemptions when we filled……please help, im desprate.

  51. Admin Roberg on Wed, 19th Sep 2012 4:25 pm
  52. Hi Hollie,
    It sounds like you’ve got a mess on your hands. First, let me make sure that I understand everything.
    1. You got a divorce in 2006.
    2. The decree changed in 2008, but you still are entitled to claiming the exemption every other year.
    3. You do not have your child living with you.
    Am I right on all this? If so, here’s what I think:
    Your first issue is the divorce decree. It sounds to me like your decree says you get to claim your daughter and it needs to be free of “conditions.” That means you can’t be required to pay child support or anything like that. I’m making the assumption here that your divorce decree is okay, but if you have conditions, then there’s your problem.
    The fact that your ex filed first doesn’t matter. It just means that he filed first. I’m guessing that you paper filed (because you mailed the page of your divorce decree) so you’re just in the fighting part, not the filing part.
    So where could you have gone wrong? I’m guessing you might have claimed your daughter for EIC and not just for the exemption. Since she only lives with you on Friday – Sunday–she must live with someone else for more than 6 months of the year. I’m guessing she lives with the grandparents. I’m guessing that they’re the ones claiming her on their tax return? Or is your ex claiming her? The IRS won’t tell you, but you might have a good guess.
    So, I would think that you are entitled to claim the exemption, but not the EIC. Your other daughter should not figure into this issue at all. (If she lives with you, she can qualify you for EIC for one child, not two.)
    I hope this sorts things out a little. Good luck.

  53. Kathy on Sat, 20th Oct 2012 7:40 pm
  54. received a letter from the IRS yesterday informing me that someone else had claimed my son as a dependent on their tax return. I assume it was his father. We were divorced in 2004, at which time we signed an agreement for joint legal custody, I have physical custody and have been the custodial parent since 2002. The only language in the agreement pertaining to dependents is this one line: ‘For tax purposes, Gregory Jr. shall be claimed as a dependent of Gregory Sr.’
    There is no other language at all of me agreeing to not claim the exemption, it doesn’t even specifically spell out what year or years he would be allowed to claim it. That can’t just mean “always”, can it? I understood it as just for that one tax year. I certainly wouldn’t have forfeited that right indefinitely. Because I was a stay at home mom at the time, and had no income to report anyway, it seemed fair and fine to me for him to claim him for THAT year.

    I have had to go to court twice to get him to and to pay child support and arrears balances which were $1500+ on two occasions. Now it’s taken out of his check so it’s regular but I find out that he believes I released this claim for good and he deserves this right? He does nothing for our son outside of court ordered support and has made no effort to spend more than 3-4 days with him over the the last few years.

    From the research I did online about this, I don’t believe he has a right to claim our son as his dependent with the language in the agreement. The agreement he would have to submit is not ‘substantially similar to the Form 8332′ in that it only meets one out of three of the criteria. Am I wrong?

    From form 8332:

    “…If the divorce decree or
    separation agreement went into effect
    after 1984 and before 2009, the
    noncustodial parent can attach certain
    pages from the decree or agreement
    instead of Form 8332, PROVIDED THAT THESE PAGES ARE SUBSTANTIALLY SIMILAR TO FORM 8332. To be able to do this, the
    decree or agreement MUST STATE ALL THREE OF THE FOLLOWING.

    1. The noncustodial parent can claim
    the child as a dependent without regard
    to any condition (such as payment of
    support).

    2. THE OTHER PARENT WILL NOT CLAIM THE CHILD AS A DEPENDENT.

    3. The YEARS FOR WHICH THE CLAIM IS RELEASED.

    The noncustodial parent must attach
    all of the following pages from the
    decree or agreement.
    ● Cover page (include the other parent’s
    SSN on that page).
    ● The pages that include ALL OF THE INFORMATION IDENTIFIED IN (1) THROUGH (3) ABOVE…’

    Please, please help me understand and fix this.

    Thank you.

  55. Admin Roberg on Sun, 21st Oct 2012 4:28 pm
  56. Hi Kathy,
    You’re not going to like my answer. Sorry.
    Here’s the thing–when you got divorced, the decree let’s your ex claim your son. There are no conditions. Part 1–he wins.
    Part 2–the bit about you not claiming the child–it’s implied in the divorce decree. The decree says that Gregory Senior gets to claim–that means you don’t. Is it spelled out in black and white? No, but the “reasonable person test” implies that if the judge says he gets to, it means you don’t. Part 2 goes to your ex as well.
    Part 3–He’s got the legal paperwork to back him up.

    So, your ex, who has not lifted a finger towards raising your child for the past 10 years has finally figured out he can claim a deduction for your child. The little divorce gift that keeps on giving isn’t it? Feel free to insert your own curse words, I think you’ve got a right to be angry.

    Here’s what he doesn’t win–
    He doesn’t not get to claim the Earned Income Tax Credit.
    He does not get to claim head of household.
    He does not get to claim the child care credit, (if your son isn’t too old for child care already.)
    He also doesn’t get to claim Dad of the Year–although that has nothing to do with taxes, just remember that when you’re feeling ripped off. In the long run – your child is going to remember who was always there for him, not the dude who thought of him once a year when he had to file his income taxes. So–you win that one.

  57. Kathy on Sun, 21st Oct 2012 5:50 pm
  58. *SIGH*
    Thank you.

    That’s what I’m hearing from other sources as well. I guess I really was stupid to have assumed anything he would do would be fair.

    Some have suggested I could petition to modify the child support order and then, as part of that, rewrite or negotiate the dependance claim. I think it’s a good idea but I’m worried that modification might end up in less support for my son….His father has remarried and has two more children now, and I think they factor that into the guidelines in MA now. But on the other hand, he makes a lot more money and than he did then. Would you believe, I even agreed to $67/week less than what the guidelines in 2004 came out to. (Yes, I am a sucker! This is what I get for trying to play nice)

    I’m going to try to find a lawyer (that I can afford) to help me figure out what to do.

    Thank you so much for taking the time to answer my question and giving me a “pep-talk” at the same time!!!

    Kathy

  59. Admin Roberg on Sun, 21st Oct 2012 7:51 pm
  60. Good luck Kathy!

  61. Gina on Fri, 26th Oct 2012 11:58 am
  62. My fiances ex wife had filed her taxes in 2010 befor ehe did and claimed thier kids. The HR block manager had filed both my fiance and his ex’s taxes and presented him with a 8332 form due to the fact that he had the children more and splits 50 50 in the divorce and have no court agreement on whos to file taxes. He had the right to claim the children because he had them more and made more money. However she filed her taxes before him but hr block claims he has the right not her. He is still going through issues with the irs and has more than enough proof that he is in the right and is under the suspition that she forged his name on a 8332. What can be done about that?

  63. Gina on Fri, 26th Oct 2012 12:08 pm
  64. We have a meeting with HR Block Monday morning. According to the form 8332 the only thing that she could have over him causeing him all this trouble is a forged document. He has even went as far as going to the school that his kids are in and getting a signed statement that thier address was his address in 2010. My fiance has been dealing with the IRS directly without any requested help from HR Block. If they knew that he didnt fill out a 8332 for his ex shouldn’t HR Block have needed to call her back to have it ammended or call the police because of forging his name on a federal document? Point being they did nothing to help!

  65. Gina on Fri, 26th Oct 2012 12:10 pm
  66. Sorry I am meaning that he had been requesting HR Blocks help for 2 years and did not recieve any.

  67. Admin Roberg on Wed, 31st Oct 2012 10:07 am
  68. Gina,
    Wow. A couple of things just so that you know them.
    1. H&R Block doesn’t guarantee anything if EIC is involved. I don’t know if you signed a Peace of Mind agreement, but if you did–it doesn’t include EIC.
    2. The big issue you’re dealing with is a possible forgery. Just from experience–I worked on a case with a forged document and it was a nightmare. The client had contacted the police, the FBI, the IRS, and he had a terrible time with it. Now to my untrained eye–I was pretty sure the client was telling the truth–but nobody but me believed him. Just giving you that heads up–hopefully you’ll have better luck.
    3. We can’t assume that H&R Block knew the 8332 was a forgery. It doesn’t make sense that they would file forged documents (although it is possible that you found a “bad apple”, but that’s a pretty hot charge. Mistakes can happen, some preparers might not be as well trained as they should be–but filing a return based upon a fraudulently signed form? You’ve got a tough road ahead of you there. (On so many levels.)

    But–let’s step back from that for a minute and take a different look. The ex supposedly has a signed 8332 form that allows her to claim the children on the tax return. That means that she has the right to claim the dependency exemption and the child tax credit. Using the 8332 form basically tells the IRS that she does not have custody of the kids.

    That leaves your fiance with the head of household designation, the EIC, and the chid care credit (if you use daycare.)

    I’m pointing that out because it looks like he’s trying to prove the kids lived with him–that shouldn’t be the argument if there’s an 8332 in the picture. If the ex used an 8332 to claim the exemption–then she automatically gave those issues up.

    So–do keep your appointment with H&R Block and have them sort through what the issues the IRS really are addressing. (Those IRS forms as long and confusing.)

    If you really are dealing with a forgery, you may need an attorney. You’re talking about a crime and that’s out of my league. Good luck.

  69. StGo on Sun, 4th Nov 2012 9:39 pm
  70. I have filed myself since my divorce, 3 times w/out a problem, just got a letter from the IRS that someone else has claimed the same dependent.
    My 2008 divorce papers state that I have the right to claim my child as a dependent for federal & state taxes as long as I’m current on my child support (which I have never been late or missed). My ex “shall sign IRS Form 8332…each applicable tax year.”
    The papers also state that the court has jurisdiction to provide for alternating the exemption once the ex is gainfully employed, but I do not know if this is the case & the court has not notified me of this.
    I have asked for the Form 8332 from the ex w/out getting a response in the past, so I stopped asking. The short of it is that the ex won’t talk to me & when it happens, the ‘conversation’ lasts 2 minutes, then I get hung up on.
    My child does NOT stay with me for 50% of the year & I can’t/don’t claim the EIC, but from the paperwork, I have the right to claim my child.
    Is my only option taking the ex to court if the ex still won’t talk/cooperate?
    How long do I allow the ex ‘I’m looking into it’ before I have to take action to force a resolution?
    How does this affect my up coming taxes? Do I claim my child again like no audit is underway?

  71. Admin Roberg on Tue, 6th Nov 2012 4:41 pm
  72. Hi St. Go–
    You’ve got a problem. The problem is that your divorce decree has “conditions” meaning that because you’re required to pay child support — that’s a condition–that means that you have to have the 8332 in order to claim your child on your taxes.

    Now–yes, you’ve done it before no problem–but now that it’s being contested, that 8332 form is pretty important. If you didn’t have the conditions in the decree, you could just photo copy the section that says you get to claim the exemption and you wouldn’t need to get anything signed by your ex to win with the IRS.

    So you’ve been paying your child support and doing the right thing and you’re still being shortchanged. I’m sorry. I have no magic solution for you.

    Now, the “looking into it” is pretty lame for an excuse–either she claimed the exemption or not. Either it’s your turn or not. You are the parent and you have a right to know.

    I hate to send you back to your attorney, but that might be the only way you get satisfaction on this one. If it’s possible, you might want to try to get the signed 8832s while you are in court. For example: lets say she gets to claim the exemption for 2011, 2013, 2015, etc.–then, while you’re still with the judge, have her sign the forms for 2012, 2014, 2016, etc. all at once. Since she’s not the cooperative type, if you can get those things in advance, you won’t have to deal with asking again later. (I doubt you’ll get it, but you need to ask–if you don’t ask, you won’t get.)

    I wish I had a better answer for you. Sorry.

  73. Christina on Thu, 8th Nov 2012 5:43 pm
  74. My question is ; I was divorced in 2003, in our temp order attorney said Ex could claim child ssupport as Alimony. Well, I wasn’t wrking -hired an accountant to file my taxes and it does not appear that he claimed any support as alimony…. Could this be due to the fact I had limited income? Or an oversight. I am currentlyt taking my ex back to court for other issues And He of course is attempting to distract the issues he was served. And focus on this? I’m so confused and not sure if I am in trouble or he is making a smoke screen out of nothing please advise!!! Thanks!

  75. Admin Roberg on Sat, 10th Nov 2012 10:45 pm
  76. Hi Christina,
    I’m a little confused too. So are we talking about a tax return back in 2003? Or has he been claiming that he paid alimony to you every year since then?

    If it’s one return back in 2003, I wouldn’t lose any sleep over that. Now if he’s been claiming that he’s paid alimony for all these years–well that could be a problem. Except–I think it might be more of a problem for your ex than for you.

    Here’s how I see it–child support isn’t alimony. So, what does the agreement say? Because if he’s not paying alimony–he can’t be claiming it as a deduction. And that would be a problem for him. So here’s my question–does the “alimony” stop when your children grow up? Because that’s pretty much child support.

    But what if he wins that argument? Well–that actually might be good for you too. You see, alimony counts as earned income. So, if you have really low income, the alimony might actually be better on your taxes than off.

    So Christina, it’s possible that you’re sitting pretty no matter what happens.

    I’d go back to your tax person and just have her rerun your numbers claiming the child support as alimony and see what happens. It could be that you come out ahead. But if you don’t–I still think the alimony should be child support anyway. But knowledge is power, and if you know for sure where you stand–it gives you power, so check this out with a pro.

    Good luck.

  77. Tammy on Thu, 15th Nov 2012 11:28 am
  78. curious… my boyfriend still isn’t divorced after about 2 1/2 years and they have 3 children together. His ex has physical custody ( for now) of all kids. She claimed all kids on her 2011 taxes and there is no court order of any type to say who claims kids. He had to claim married filing separately no kids so he owes the IRS and state of minnesota 7K ( for 2 years) as she filed before he did. Is there any way he can amend his 2011 taxes and get to claim any type of deductions or credits for kids? I also need to add he pays a high amount in child support every month ( which I won’t get on that because I feel the non custodial parent pays way too much for what it costs…..) He finally got it ordered in mediation that he gets to claim one child every year starting this year which I am now understanding it includes dependency and child tax credit only even if the papers say he gets the EIC????? ANy relief would help!!!!! :)

  79. Tammy on Thu, 15th Nov 2012 11:36 am
  80. I forgot to ask about my personal situation… My divorce decree states my ex claims my oldest son as long as he is current with child support( which he is not). My oldest son is 18 yrs old as of May 2, graduated high school, attending secondary school and still lives with me and financially supported by me as my ex was done paying support for him May 30, 2012. I am confused because I know my son is an adult, but he still can be claimed as a dependent. So, does my ex no longer get the right to claim him on taxes since he is an adult, living with me and receiving nothing financially from him? Or how does this work from now and future?

  81. Admin Roberg on Sat, 17th Nov 2012 2:25 pm
  82. Hi Tammy,
    As long as your boyfriend continues to stay married to his wife he will not have much relief on his taxes. He could set up a payment agreement with the IRS and with Minnesota to pay off his tax debt–but if he doesn’t start being more responsible and withholding more or making estimated tax payments, then he’ll never pull himself out of that hole.
    Now here’s something you need to know–if he ever does get a divorce and wants to marry you–don’t do it until his tax problem is all fixed. If you marry a guy with a tax problem–it becomes your problem. The IRS can levy your bank account and put a lien on your house.
    It sounds like you’ve been in this relationship with a married man for quite some time. Obviously, there must be something good about him or your wouldn’t be wasting your time like that for nothing. As an outsider looking in from this very narrow issue, I’m screaming “Danger Will Robinson!” (And you’re probably too young to understand that reference, sorry.) But you’ve got a financial risk with this fellow, so be very careful about any kind of financial commitment with him. Don’t co sign any of his loans, don’t put your name on his bank account–and stuff like that. Make sure he’s single and debt free before you complicate your financial life.

    I know that’s not the question you asked. It’s just the answer I thought you should hear.

  83. Admin Roberg on Sat, 17th Nov 2012 2:32 pm
  84. Hi Tammy,
    That’s an excellent question and I’m going to send you back to your divorce decree documents. Because that’s where your answer lies. They all seem to be written a little differently.

    Now one thing–your son, being 18 is an adult–but what’s he doing? Going to school. So, even if he lives on campus–the parent can still claim him. And, who’s paying the tuition? You want the parent paying the tuition to claim the child as a dependent because of the American Opportunity Credit. So, even if your ex can’t claim your son–if he’s paying the tuition–you might want to make a concession.

    Generally, once the non-custodial parent quits providing support, he also no longer claims the dependency exemption. But during this final year–it gets confusing. So look to your divorce documents to see if there’s any language to guide you. Good luck.

  85. Tammy on Sun, 18th Nov 2012 5:24 am
  86. Thanks for your reply! in regards to my personal situation with my 18 yr old son, there is nothing else written in my divorce decree except if he is behind on child support, he doesn’t get to claim my son ( i also have a 15 yr old son). Therefore, I will more than likely get the right to claim him. As far as tuition, my son pays all tuition himself through financial aid. I cannot afford to pay anything and my ex has done nothing himself even though he can get GI bill remaining benefits for him. If I am understanding you correctly, my ex will no longer have that right to claim my son here on out but I can? Is there some reference I could use as proof to send to him?

  87. Tammy on Sun, 18th Nov 2012 5:32 am
  88. As far as my boyfriend, the state of minnesota has started withdrawing money from his paychecks, however, that has now stopped because he signed a payment agreement of $50 per month with them. The first year for taxes, the court allowed her to claim all kids, but the 2nd year there is nothing in writing. So, you are saying he cannot amend his 2011 taxes for any type of relief with the kids?

  89. Admin Roberg on Sun, 18th Nov 2012 9:57 am
  90. @Tammy,
    about your personal situation–you need your court document. What does it say? Your answer is going to be there, and nowhere else. Does your decree say? You might need to take the paperwork to a professional for a look see. I would think that after he’s 19–you’ve got no issue, the tricky part is this year and that’s why you need to look at the document.

    Now about college. He’s getting financial aid–is it loans or grants? Because if he’s getting loans–you can get the tax credit as if you paid cash. So is he living at home? Are you supporting him that way? Did he use your income to help him qualify for financial aid? It’s most likely that your 18 year old is still a dependent on your tax return for you. (Unless the decree says no.)

    About your boyfriend–so he’s paying $50 a month for his back taxes–good, but make sure he’s withholding enough not to owe for this year and next year or this problem will never go away.

    So, for 2011 he and his wife are separated and she has the kids. There is nothing in writing. The key phrase here is “she’s got the kids.” The only way he could get anything is if she were to sign a form 8332 allowing him to claim the exemption and child tax credit. He will never qualify for EIC.

  91. Tammy on Sun, 18th Nov 2012 10:32 am
  92. all my divorce decree states is my ex has the right to claim my 18 yr old for income tax exemption provided he is current in his child support on december 31 of each year and if he is not current, he forfeits his right to claim him and I shall have the right to claim the exemptiion and that he must execute any waiver or document to allow myself to claim the exemption for the minor children. It also states I have the right to claim my 15 yr old son. There is nothing else written in my divorce decree.
    As far as college and my 18 yr old son, he is receiving grants and loans. He is living at home, i am providing food, shelter, clothing, gas etc. Yes, my income was included when he applied for financial aid.
    As far as any parent, they can claim a child as a dependent on their taxes as long as they are going to college full time, through age 24, correct?
    thanks and sorry for all the questions. :)

  93. Admin Roberg on Mon, 19th Nov 2012 7:31 pm
  94. Hi Tammy,
    I have to make sure I tell you–I am not an attorney and it is against the law for me to give legal advice. You should check with your attorney–it looks to me like you need to get him to sign something for you to claim the oldest one. But I’m not an attorney and I can’t make that call for you–you have to talk to your lawyer.

    As far as the 18 year old and claiming the college credit–not just any parent can claim their kid–that’s more of a “most of the time” kind of situation. Your situation sounds like you be able to claim him. That said–if your ex is allowed to claim him–then he also gets the American Opportunity Credit (the college credit.)

    So you see, there is something worth fighting over here if your ex knows about the credit. (It can be worth up to $2500.)

    So, it’s worth asking a lawyer if your ex gets to claim your child or not. I hate to punt your question like that, but lawyer stuff is out of my league.

    You’re asking lots of questions because you’ve got a truly special case that’s not easy to answer. I only wish that I could be more help. Sorry.

  95. Susan on Sat, 24th Nov 2012 12:41 pm
  96. I have a divorce degree since August, 2011 in New York State. Stating that he gets to claim the child on odd Years and I get to claim the child on even Years. I have not agreed with this one with my Attorney at all, but she told me she needed something to be lenient with so she can get the divorce deal and get what would be best for me. I to sign a form for him when he files. He has nothing to do with his 3 1/2 Year old daughter the child support only comes in because it was set through child support agency. He has in the past refused to pay the child care and I had to take his ass twice to the family court for that just to be told to pay it immediately off what he own. I won case closed. Back to the TAX claiming. I called one of the IRS representative and conducted a verbal conversations with him to find out the federal law is above all states law. He even does not understand why are this states playing with this Tax claims around. I toke a little verbal questionnaire with the IRS Representative. And guess what by the end of the conversation I found out. I should be claiming my child at all times. That is what I did I claimed my daughter for the first odd Year of 2011. Even that the court order states otherwise. Oh yes he threatened me with filing a motion with disobeying the divorce degree all the time and how the state would through me to jail. I told him go right ahead and let me see what Judge would do that to any Mother and go against the federal law.

  97. Admin Roberg on Sat, 24th Nov 2012 12:52 pm
  98. Hi Susan,
    You are entitled to claim your child for Head of Household and EIC at all times. Your decree allows your ex to claim the child for an “Exemption” every other year. With the exemption goes the child tax credit.
    So–yes, you’ve got IRS regs on your side, but you also have a court order on the other side. Read this: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    Talk with your lawyer. You do have an agreement to allow him to claim the exemption (that’s all he can claim). Yes, you win by IRS rules, but you also have state laws to obey. I’m not a lawyer and cannot give legal advice so please talk to your lawyer, I wouldn’t want you to wind up in jail on a contempt of court charge over this. Your kids need you at home.

  99. Susan on Sat, 24th Nov 2012 10:30 pm
  100. I did spoke to two diffrent lawyers two have two diffrent opinions. One says he can not do a dam think about it and the other explained that my ex could argue it but ultimately I would win it and walk away unharmed. I make baraey $20000 a year. While he makes close to $75000. And even of joint custady he doesn’t ever see her the ought out the year. He does not obay by the custody order at all. In many ways. So yes I did a bit of home work before I did what I did. He is still threatening me ones in a while but I don’t fear him.

  101. Admin Roberg on Sun, 25th Nov 2012 1:34 pm
  102. @Susan,
    Sounds like you’ve covered your bases. You’re good with the IRS and you contacted a lawyer about the local legal issue.

  103. Michaela on Tue, 27th Nov 2012 9:53 pm
  104. I got a letter from IRS, and about panicked. Then started to read your blogs and started to feel confident that I was in the right. Now, I’m not so sure. I was divorced in ’06, minor was 3. I had moved out of state when we separated, which he was okay with. When I got the divorce papers, it stated 50/50 physical custody, and he “shall claim the minor child, XXXX , as his dependent on his Fed & State Income Taxes, on all years.” ..At the time, minor flew back and forth throughout the year between holidays so the year was split up. When she finally started school, she stayed with me , and was with me full time, visiting home only 1 month during summer, xmas/spring break. He does not pay any support. I have claimed her as my dependent for the past 5 or so years, since she is living with me full time and have been ever since she was 5. She is now 11. This year, I got a letter from the IRS and now I am about in a panic…Do I need to file an ammended return, or do am I entitled to claim the dependent and “do not need to take any action” as the letter asks…

  105. Michaela on Tue, 27th Nov 2012 9:56 pm
  106. …sorry….I saw my typo….minor stays with me full time, visiting HIM (not home) only month during summer, xmas/spring break….

  107. Admin Roberg on Thu, 29th Nov 2012 8:49 pm
  108. Hi Michaela,
    It sounds like your ex is allowed to claim the dependency exemption and child tax credit. You will still be able to claim head of household and EIC if your qualify for that. Here’s a link that might help: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

  109. Erik on Fri, 30th Nov 2012 12:21 am
  110. I have a question that concerns Oregon where the kids are on child support until age 21 although after age 18 it theoretically goes directly to them rather than to Mom. I’m a NCP father with an Oregon divorce and I’m all current on my support and I am helping the kids with their college tuition too but I digress. The decree states that I unconditionally get my daughter’s exemption forever (or until 21 at least) but what happens now that my daughter turned 18? Does my ex still fill out the form 8332? Does my daughter fill it out? Do I just claim the exemption and cross my fingers? Thanks.

    And BTW, I’m not sure if somebody pointed it out but all is not lost for those who didn’t claim the EIC or something else for prior years. They can still file amended tax returns for 2011, 2010 and I believe also 2009, no? It’s not that hard to file an amended return and the form is only 2 pages long.

  111. Michelle on Fri, 30th Nov 2012 1:25 am
  112. Question – state of Oregon divorce decree in 2003 with a stipuled judgment awarding physical custody to the father in 2006. Full physical custody and joint legal custody. Since that date, the mother has been in and out of the children’s life, but obviously the kids will defend and want a relationship with the mother – she has not contributed any funds of any kind for medical, education, etc. Both children have gone to private school, one is now in college – the child in high school will be 17 in January and has a seizure disorder – all documentation, bills, everything goes to the Dad. For the last year the high school child has been spending more time with her mother to the point that the mother is interfering with the father’s relationship – i.e. just showing up and saying they “miss eachother” – the father hasn’t gone to the point of holding to the every other weekend visitation as the kids are growing up and need relationships with both parents. The problem now is that we just got a notice that the ex wife claimed the daughter on her taxes as a dependent in 2011. So what do we do now – nobody has tracked the time at all of the children and if anything they are about even with the constant back and forth – however, the father pays everything and nothing in that arena has changed at all. We will be following up with the divorce attorney, but wondering how the IRs views this – if teh father has a valid judgment awarding full physical custody to teh father how can the mother even try to claim the child on her taxes? THanks!

  113. Michael Siebert on Fri, 30th Nov 2012 1:10 pm
  114. Thank you for writing Erik.

    Your daughter needs to do nothing in this situation. The fact that she turned 18 is irrelevant.

    It would be helpful if your ex still filled out and signed Form 8332 just to be safe though.

    But as the article states: “If your divorce decree went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree to the tax return to claim the exemption as long as the decree has no conditions (like paying child support) instead of requiring the custodial parent to sign a form 8332 (release of exemption)”

    Also, thank you for pointing out the three year statute on amended returns. This is very helpful to a lot of taxpayers.

  115. Michael Siebert on Fri, 30th Nov 2012 2:20 pm
  116. Thank you writing Michelle.

    In most cases, because of the residency test, a child of divorced or separated parents is the qualifying child of the custodial parent. The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.

    Bottom line: The IRS will grant the dependency to the parent with the most time. If the time is equal, it will go to the parent with the highest AGI under the tiebreaker rules—said another way, if the time is equal, the parent who made the most money will get the dependency.

    If I were you, I would get out a calendar and start counting days because even if you make more money, the number of days is the most important factor.

  117. Liz on Wed, 19th Dec 2012 7:45 pm
  118. My sons father and I (never married) went to mediation a few years ago, and it was stipulated, in very vague terms, that we would alternate years claiming an exemption for my son. This is the first year he will be able to file for him. My concern is that on the Form 8332, I’m required to give him my social security number. I am extremely uncomfortable with this! We are not on good terms whatsoever, and I certainly don’t trust him with my ss#, especially since he already knows all of my other information, having been in a relationship with him. Is there any way around this issue? I’m sorry if it seems petty, I just feel violated having to give that info to him.
    Thanks in advance :)

  119. Admin Roberg on Sun, 23rd Dec 2012 10:53 am
  120. Hi Liz,
    First and foremost, your issue isn’t petty. Your issue is about safety and quite frankly, back from my days when I used to work for the police department, the one thing I learned is that if you feel like your safety is at issue–then it is. So–your safety is the most important issue.
    Now, about the 8332–you don’t have to actually issue the 8332 form. If can be “something similar” as long as it contains essentially the same information. I would put the same information down as on the form, but only use the last four digits of your social security number. It’s a format the the IRS has been using on some other documents and will give enough information for your ex to file his return.
    In fairness, the IRS hasn’t said that it’s okay–but I’m betting it won’t come back at you. If it does, call me and I’ll take the case pro bono. Your safety is the most important concern.

  121. tammy on Wed, 26th Dec 2012 12:57 pm
  122. hi i have a question i have joint custudy of my son my divorce degree says i claim him ..he claimd him on unemploymnt,now i am on unemploymnt and i think i should hav the right to claim him for the benifit allowence since i take care of him will unemployment fiqure this out

  123. Michael Siebert on Wed, 26th Dec 2012 5:29 pm
  124. Tammy,

     

    I believe they should figure this out. Jan will have to chime in on this too. He and you would have to be able to prove dependency. I think the Division of Employment Services in most states would check the most recent federal and state income tax returns. If you have been claiming your son on your tax returns, you most likely will be entitled to the unemployment benefit allowance. You may even have to file an appeal and participate in an appeals hearing over the phone with your state.

  125. April on Fri, 28th Dec 2012 10:28 pm
  126. Michigan…My EX moved out of our marital home December 2010 leaving our 2 children with me. I filed for divorce mutually agreed in January 2012. We “at this time” agreed in February to share joint legal, and me primary physical custody. 3 days before our divorce was to be final I won a change in domicile to Florida allowing the EX only about 10 weeks throughout the year. Nothing in our divorce says anything about taxes. The only close was during our February mediation agreed to mutually agree upon annually; however, just to restate NOTHING is in our final divorce decree stating anything about taxes. So, this brings me to an interesting email that I received from my EX last night stating he thinks its fair for us to each claim 1 child a piece. I then called him and civilly and politely explained that I did NOT think that was fair because his child support doesn’t cover all the support I pay. I also gave him a link to the IRS website explaining why ONLY the custodial parent can claim the children, and my reasons also were:
    1. I AM the custodial parent.
    2. Lily and Noah live with me for about 42 weeks out of the year which MEETS the IRS’s guidelines of a child’s residence being at least half of a year.
    3. Your monthly child support obligation of $721.97 (when I’m receiving it) does NOT come close to what my monthly support for our children are.
    4. I pay for all their utilities (rent, electric, gas, phone,), clothes, extras such as glasses, medications (that insurance doesn’t cover), school supplies, gas for appointments, food and the list can go on and on.

    His response was I don’t pay for $hi+ and if I don’t agree to let him have one of the kids then he will drag me back into court to have a judge make me let him. I’m not even going to insult your intelligence by even asking if this is possible since most judges have this God ego, but I am having a difficult time understanding how a small state court can “force” me to give up a federal right I am ENTITLED to under the Supremacy Clause. While I understand the IRS doesn’t want to get involved into domestic disputes, I can not fathom how the Supremacy Clause point blank states that a Federal Law is the “supreme law of the land,” and one of the powers enumerated to the Federal government is to “lay and collect taxes” now to me if the deduction in question (child deduction) determines my amount of taxes that the Federal government can bestow upon me, then why in the h e double L L can a state judge step in and dictate the Federal Rules that are already CLEARLY defined from the Federal government??? Please at this point I’m just looking for something cuz I’m so HOT that he is even trying to bully me into this. I deserve to claim both my kids because in December and February and March I made the decision and reaffirmed my decision to be a FULL time parent NOT a part time like he did. My understanding is that the deductions are mean’t to help offset taxes you accumulate throughout the year from all the extra your providing your children. Should I be worried that a judge would grant him this?

  127. Becky on Sat, 29th Dec 2012 1:20 pm
  128. My ex was behind in child support all year and he paid back child support in full on dec. 29th. I don’t know if this still allowed me to claim my child on taxes. If anybody knows the answer to this it would be great.

  129. Michael Siebert on Mon, 31st Dec 2012 2:27 pm
  130. Becky,
     
    Legal documents often state which parent can claim a child as a dependent every year or alternate years. I am going to assume you are the “custodial parent” defined as the parent with whom the child resides for the greater number of nights during the calendar year. And I’m going to assume you have a Post-2008 decree or agreement. If the decree or agreement went into effect after 2008, a noncustodial parent claiming an exemption for a child cannot attach pages from a divorce decree or separation agreement instead of Form 8332.
     
    The custodial parent must sign either a Form 8332 or a similar statement. The only purpose of this statement must be to release the custodial parent’s claim to the child’s exemption. The noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent’s claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.

  131. Admin Roberg on Tue, 1st Jan 2013 10:03 pm
  132. Hi Tammy,
    You’ll need to talk to the unemployment office. That question is out of my area of expertise. Sorry.

  133. Michael Siebert on Wed, 2nd Jan 2013 3:57 pm
  134. April,
     

    From what you said, you have every right to claim both of your kids. If he does claim one, there will be a battle in which you should win because you are the custodial parent – the parent with whom the child resided with for the greater number of nights during the calendar year. He is not entitled to you having to sign Form 8332.
     

    But the downside to this is that the refund will take a very long time to process. Keep this in mind if you are strapped for money.

  135. Ronald Smith on Thu, 3rd Jan 2013 10:48 am
  136. I have two children (twins) out of wedlock. I pay $530 a month for child support for both children. I have a court order stating that I am entitled to claim both children on my income tax. However I received a letter from th IRS stating that more than one person has claimed the children. The children live with their mother in their grandmothers home (the mothers mother). The court order also states that the children’s mother cannot claim the children unless she is working, and then she can claim on child. She is not working, and I don’t know if she claimed the children, or if her mother claimed the children since they live in her home. I need some advice on what recourse I have.

  137. LostandStressed on Sat, 5th Jan 2013 2:39 am
  138. I am at wits end trying to find out what to do. I am the non custodial parent and have been current with child support for several years. My child lives with mother all year and I have visitation. I have a court order from 2001 that states that I have the exclusive right to claim my child every year as long as I am current on my support. It orders mother to sign and release exemption to me via 8332. The problem that I am having is that mother is refusing to sign it. She wants the exemption for herself even though she has other children to claim (not my children). I have tried to reason with her but she refuses. I understand that I am supposed to have 8332 to claim exemption, but can I attach my court order and a child support statement showing my payments are current for that year? If not, what can I do?

  139. Scott on Sat, 5th Jan 2013 4:54 pm
  140. Hello,

    Divorced in Michigan in 1998. Joint legal and physical custody of our two children. The divorce decree awarded the right to my ex for her to claim both of our children on her returns. Overnights since ’98 have been split 60/40 with the majority being with their mother. I paid child support to their mother for that entire period.

    My oldest is now 22 and not going to school so no questions about him. The question I have is about my daughter who turned 19 in October. She graduated high school in May at which point I was no longer was required to pay child support to her mother. She started college and moved into a dorm in August. I’m paying her tuition/room & board/books (over $10K paid in 2012) and her mother is paying nothing (says she can’t afford it).

    Total overnights for 2012 were 141 at her moms, 90 at my house and the remaining 134 at school for which I paid room & board. My question is, since I believe our daughter was emancipated in 2011 when she turned 18 and I feel I’ve paid for the majority of her expenses in 2012, can I legally claim her as a dependent and deduct her college expenses? If her mom still has the right to claim is there any way for me to the deduct college expenses I’ve paid without claiming her?

    Her mom is stating the she has the right and is planning to claim her for 2012. Obviously an 8332 is out of the question – not even sure if applicable to our situation or if the number of overnights even matter with emancipation.

    Thanks in advance for your thoughts/answers to my questions. Much appreciated!

  141. Dan Fairchild on Sat, 5th Jan 2013 6:41 pm
  142. HI Im confused with the before 2008 and after?? We were divorced in 2009. There are 3 children. In the divorce settlement I get to claim 2 and she gets one and it alternates every year. So next year she gets2 I get one. Anyway my ex continues to file all 3 every year. I have been following the divorce agreement. I send in a copy of the divorce agreement with my taxes.
    Couple months ago I got the letter from the Irs stating 2 people are claiming the same dependent.
    So what can I do??? Do I have to take her back to court?? Please help. I live pay check to paycheck pay my child support Im doing nothing wrong??

  143. Admin Roberg on Sat, 5th Jan 2013 8:18 pm
  144. Hi Ronald,
    Here’s the deal. Your court order gives you permission to claim the exemptions. You are not entitled to claim EIC or Head of Household because the twins live with the mother and grandmother. So, first question–did you file correctly and only claim the exemptions?

    If you claimed EIC and/or Head of Household for the twins–you will be owing the IRS money.

    But, let’s assume that you did it right, and the mom or grandmother claimed the exemption and child tax credit also–then you do have some recourse. If your agreement is dated in 2008 or earlier, then all you have to do is mail a copy of the section of the decree that gives you permission to claim the kids to the IRS. If the decree is from 2009 or later, then your ex should be signing a form 8332 to allow you to claim the exemption. If she’s not doing that, you may have to go to court for force it.

    Your best bet–if this is possible, is to talk to your ex and figure out exactly what happened. Together you should work things out and file properly. Trust me, I know that this might not be possible. But you’re probably going to have to deal with this issue for several more years so it’s worth a shot.

    A piece of advice, you probably really need her to sign that 8332 form. Here’s a link: http://www.irs.gov/pub/irs-pdf/f8332.pdf If possible, get her to sign for 2012 when you ask her to sign for 2011. Good luck.

  145. Jennah on Sun, 6th Jan 2013 11:11 am
  146. Hi Admin Roberg!
    Hope you had a wonderfully holiday! It’s about that time if year again and I have a question that’s been eating at my for years. I’ll try and make this as brief as possible. My ex husband and I divorced back in 2008. We have 2 children together and we share joint custody however they are with me more than they are with him due to his work schedule. He was ordered to pay $600 per month in child support then based on his income. We sold our house and split the profits. Let’s fast forward to 2012. His income has drastically changed for the better and mine for the worse. Every year since our divorce he has claimed one of our children. About a year ago I asked him nicely if he would be willing to let me claim both children due to my situation and not having any other major write offs and he flat out refused and said it was his right to do so. Let’s keep in mind he owns a two family home rents both floors out and recently this past December purchased a new additional home In which he lives in. He makes easily with overtime about 85,000 per year and still pays the $600 in child support for the two children ages 9 & 10. Am I wrong for asking to claim both instead of just one. Do I have any legal right to this? I’ve considered asking for an increase in child support but I figured if he agreed to let me claim our other child I would not increase the support I would just call it even. I think I am being extremely reasonable but I’d love your opinion. Thank you in advance!

  147. Admin Roberg on Sun, 6th Jan 2013 5:08 pm
  148. @Lost and Stressed,
    I’m sorry, but your decree has a condition, that means that the IRS won’t allow you to just send in the pages of your decree to claim the exemption. Here’s a thought, it might not work, but worth a try–you don’t have to have the actual 8332 form–you just need to have something that has all the same information. Could you possibly have anything in your paperwork that you could use? It’s worth looking for.
    You might need to go back to court to get her to sign. Sorry.

  149. Admin Roberg on Sun, 6th Jan 2013 5:32 pm
  150. Hi Scott,
    This is one of those situations that totally sucks. Sorry, Gotta be honest. Here’s the problem. Only the parent that claims the exemption gets the American Opportunity Credit. And I hear your story all the time.
    Here’s what I suggest. Talk to your ex. Not easy, I know. Technically, you daughter is not emancipated–you’re supporting her.
    What exactly is your ex getting by claiming your daughter’s exemption? Of course there’s the $1000 child tax credit. Maybe she reduces her taxes a bit from the exemption, but if her income is really low then that won’t do her much good.
    Maybe you two could make a deal? I know that sounds cheesey but that’s probably your best shot at getting anything.

  151. Admin Roberg on Sun, 6th Jan 2013 8:33 pm
  152. Hi Dan,
    I’m guessing that your ex has custody of your three children. What you need to do is “split” the exemption. You get to claim the exemption and child tax credits for the children you are allowed to claim, but you cannot claim EIC or head of household filing status for any of them. Here is a link to a post about that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    The thing is, your ex may be claiming all three for EIC, but not for the exemption. If that’s the case, she’s doing it correctly. If she’s claiming the exemption–then she’s at fault.

    To cover your behind, you should have her sign a form 8332 releasing the exemptions for the children that you are allowed to claim.

    Because your divorce was in 2009, you cannot just mail in pages from your divorce decree to prove that you are allowed the exemption.

  153. Admin Roberg on Sun, 6th Jan 2013 8:55 pm
  154. Hi Jennah,
    Thank you. I hope you had a great holiday too. I took some time off and went to Florida, sorry, that’s why I’m so far behind.
    Anyway, here’s some information that I think might help you. The children are with you most of the time. Now the divorce decree lets him claim the exemption–and that includes the child tax credit, but it doesn’t give him EIC or the Head of Household designation. Here’s a link about that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    So here’s the bottom line, you have the right to claim both of your children for purposes of EIC. That might be all you need and you won’t have to negotiate anything. If that works for you, that’s the easy way.

  155. Admin Roberg on Sun, 6th Jan 2013 9:55 pm
  156. @Becky,
    I know Michael answered, but I wanted to add my 2 cents worth.
    Your ex paid up his child support on December 29th. I’m guessing that you’ve got an agreement that says he can claim the exemption if the child support is paid up. Honey, it’s paid. He should get the exemption. (Yeah, he’s a toad for being late, but he’s caught up.)
    Now just because he gets the exemption, doesn’t mean he gets the EIC of head of household designation. Those still belong to you.

  157. Scott on Mon, 7th Jan 2013 11:34 am
  158. Thank you Jan, I really appreciate the response!

    So, in your opinion there is any way for me to legally claim my daughter under IRS rules? If it makes any difference the divorce decree was worded so that my ex wife had the right to claim our “minor” children.

    Thanks again,
    Scott

  159. brenda on Mon, 7th Jan 2013 8:54 pm
  160. my ex was awarded dependency exemption.Does this entitle him to e.i.c ..the children live with me.I do side work .He dont follow the time sharing order of the court.HE DOES PAY CHILD SUPPORT …

  161. Admin Roberg on Mon, 7th Jan 2013 9:05 pm
  162. Hi Scott,
    So here’s the thing. I’ll be you a nickel, never mind, I’ll be you $100 that your wife is planning on claiming your daughter, it’s what she’s been doing for years. And, if you both claim her, it will go to IRS and they’re going to rule for your ex. So, you’d better work it out through her. It’s your safest bet. Good luck.

  163. Admin Roberg on Mon, 7th Jan 2013 9:52 pm
  164. Hi Brenda,
    You’ll need to check this out: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    That has your answer. He gets the exemption, not the EIC.

  165. Angie on Tue, 8th Jan 2013 7:28 am
  166. Hello, I have a question about whether or not I can claim a child who lives in my home and who I have provided half of his total support for the year. The child’s father has custody and provides the other half of the child’s total support. Father and I are not married but have been together for 10+ years living together. Mother is not ordered to pay support due to only receiving SSI income benefits and court order allows father the exemption. Father is able to claim the child but he would like for me to see who would result in a better benefit for claiming him. Of course, we only wish to do this if it is legal. I know I do not meet any of the typical dependency tests but as far as I have found when researching online I would qualify because the child lived in my home for the entire year and father and I both provided equally 50% of the child’s support. Is this correct? If so, could I also claim Head of Household and EIC or would we be required to split the exemption as you have discussed in other responses? Child is 15 years old and has no income from working. Any help that you can provide is much appreciated.

  167. Admin Roberg on Tue, 8th Jan 2013 9:44 pm
  168. Angie,
    Do not claim your boyfriend’s child. It is illegal and you could have some serious problems doing so. Read this post: http://robergtaxsolutions.com/2012/01/can-my-boyfriend-claim-my-child-by-a-different-father-on-his-tax-return-for-the-earned-income-credit/

  169. Angie on Wed, 9th Jan 2013 12:58 am
  170. Thank you so much for your response! Very glad to get correct information. Could have been a headache for us for sure.

  171. Lauren on Wed, 9th Jan 2013 9:51 am
  172. I kind of need some clarification. So my husband has a son with an ex. The son lived with the ex for several years full time, the mom had a serious drug issue which highly affected the child, we went to court and were awarded half custody, meaning the childs time was split exactly 50/50 that year between us and her. The first 4 years of his life, mom claimed him, we took him often and on a regular basis and even extra, and we paid child support and even helped her when she had car problems. So at points we went above and beyond, at some point we fell a little behind on child support as we werent paying in full. So as moms drug problem deepened our son was having a very hard time in school and daily life, eventaully it boiled down to us receiving Full primary residence custody with mom being awarded all weekends except for maybe once a month we could have a weekend with him. When this was done they also wrote in the paperwork to switch years for claiming the child. Now, this was last January, we filed, claimed son, and because we were behind the IRS took $1000 owed to her and paid her off for child suppor which was fine with us. Well after we were awarded primary custody last January, moms drugs were even worse, she completely did not obey the court order at all, so we tracked the time she spent with son, 5 days in total out of 365 days last year. Only 1 time was an overnight, she even stopped calling him and eventually mom spent about 6 months throughout last year in prison alone. She provided not 1 dime of childsupport, nor did she even buy him a Birthday present, xmas present or anything. We are honestly not sure if she even worked 1 job last year as she was arrested multiple times for stealing. Now, its supposed to be her year to claim him, however i do not think she has any right to claim him as she has not supported him at all last year, we paid over $5000 for just his daycare alone. My thought is that she is not entitled to claim him, as said even if she did work we didnt hear from her at all except for the times she was in jail, regardless of the what the court order says, as you must support the child in some kind of way in order to be able to claim any rights to the dependant. I said to my husband if she took us to court, there is nothing she can argue as we have not fought her about anything because our concern has always been for the child not what she is doing, so given her situation we did not take her to court for the childsupport or medical or anything. We also have 3 kids together as well, so as you can imagine 2 people who both work fulltime with 4 children, we do struggle throughout the year to ensure eveything is paid, and during tax time, it gives us help to pay off the bigger things such as tires for the 2 vehicles, catch up on all the bills, credit cards etc..advice as to what we should do, should we just go ahead and claim him with our taxes , which was my first thought as if we were audited, we can prove we have primary residence, she hasnt supported nor taken the child as she had no home of her own last year, and we are entitled. if she took us to court, i cant imagine any court hearing our story and siding with a stealing, child abandoning drug user, over parents who did the proper thing???

  173. Admin Roberg on Wed, 9th Jan 2013 8:58 pm
  174. Hi Lauren,
    If I were the IRS I would just give you all of the tax credits, but I’m not. The bottom line is going to be; what does it say in the divorce decree?

    I don’t have any dates, I don’t know about conditions, or anything. Your story makes me want to give you everything, and you might just be entitled to everything anyway. But the bottom line falls with the paperwork and I don’t know that part so I can’t really give you a good answer. (But I’m rooting for you.)

  175. Lauren on Thu, 10th Jan 2013 1:49 pm
  176. Thank you for your answer. I should clarify, mom and dad were never married, Dad and i had been together for 6 years, we split up for about 2 years and then we got back together. So those 2 met and within about 2 months she was pregnant…not a good start. There was never a divorce, however there has always been custody. They went to a Mediator each time and the Mediator is who wrote up the information basicly on a piece of paper, they never were able to speak with a judge, as the courts prefer you to resolve it with a mediator and no fighting in front of a judge. So we all agreed to the full time M-F living with us where we have Residential Custody of him, mom was supposed to have him every weekend except for 1 time a month, the weekend of our choice, where we would have him. On the bottom of the paper it merely stated “parents will agree to Odd years of claiming dependant for taxes for the father and even years of claiming for taxes for the mother”. So it wasnt really an Order but more so an agreement between mother and father for custody purposes signed off by a mediator and then I believe it had to be signed by a judge, not to sure. No sooner were we awarded full residential custody, that first weekend mom blew the child off and then continued on a downward spiral from there. So from Day 1 she did not go by anything this “agreement” said. We were so focused on the child that we never bothered her, called her or even summoned her back to court, because our focus was more on him then her. Now its crossing our minds of well maybe we should have tried to take her back to court, or at the very least tried to seek child support. FYI, child had already lived with us full time even prior to this new Residential custody which took place January 23rd 2012, it was just set in stone on that da. Mom was in Rehab (3rd) all through the holidays from the end of 2011 right into 2012. In November, she dropped him off with us, took off to rehab at last minute and didnt tell anyone anything, just never showed back up to pick him up (we had split custody at that point 50/50 in 2011) …i know, this is probably the craziest story ever!

  177. Admin Roberg on Thu, 10th Jan 2013 9:22 pm
  178. @Lauren,
    Not the craziest story ever! Sounds like you’re a good person just trying to make things work. Oh yeah, I guess that is crazy. :)
    So what is the date of the agreement?

  179. Dee Clifton on Fri, 11th Jan 2013 3:00 pm
  180. I have a question for Admin Roberg.
    First scenerio: Day #1 and I got divorced in 2000 we agreed that he would claim oldest child (now17), and I would always claim youngest child (now13).
    JMC and visitation set. The last 2 yrs both kids have lived w me full time, no child support. He has still continued to claim oldest child to the fullest. This yr she is now working and should claim herself.
    Q1: Can I claim her as a dependent this lasts yr and get EIC and her still file her own taxes? Im looking to maximize my return because dad shouldnt have been claiming her. Lasts yrs tax prep told me the irs would audit him b/c they stated in filing that both kids live w me FT. He wouldnt sign the form and I didnt want to take a chance of getting audited last yr so I didnt claim her.

    Second scenerio: Dad #2 and I divorced in 2008 and agreed to alternate each yr on who claims child. This yr he came to me and said if I would pick up his healthcare ins ea yr he would give me rights to claim him for the rest of his life, after this yr which is his yr to file!.
    Q2: Can I still claim EIC & daycare on my child if dad claims him as a dependent?
    Q2′d: What do I have to send the IRS so they know that dad is giving up his rights to claim him forever after this yr? Is the form 8332 enough? Do I send it in EVERY yr when filing?
    Thanks in advance..DC

  181. Admin Roberg on Sat, 12th Jan 2013 9:23 am
  182. Hi Dee,
    Okay, you’ve got a plateload of issues. Let me try to make some sense of it.
    Dad 1:
    First, your 17 year old cannot claim herself on her taxes. She can file a return, but she has zero exemptions. You claim her. You get the EIC for her. That’s the way it is.
    Also, since there is no written document allowing Dad 1 to claim the exemption, he’s out of luck unless you sign the 8332 form and allow him to. Although if you have signed something in the past, he might be able to use that–depends upon how it reads. I’m guessing he doesn’t have the paperwork to back him up. Even if he does, he could only get the exemption. (Your daughter is 17, no child tax credit.) He cannot have head of household or EIC.

    About Dad 2:
    Yes, you still get EIC and the daycare credit even if he has the exemption because you have custody. Now, if he agrees to release the exemption forever, get that in writing. Do not have him sign an 8332–that releases the exemption to you, but that’s for a non-custodial parent. If you send an 8332 to the IRS, they will assume that you don’t get the EIC and head of household. Just file the return claiming everything, but don’t send an 8332. But get a written statement (notarized is a good idea) saying he’s not claiming the exemption he’s entitled to in the divorce decree because of the insurance and have that in your little arsenal of weapons in case he changes his mind later.

  183. Admin Roberg on Sat, 12th Jan 2013 9:24 am
  184. @Dee,
    I shouldn’t have said “arsenal of weapons”, that sounded so negative. I just mean you want to have your behind covered. Sorry.

  185. amber on Tue, 15th Jan 2013 7:15 pm
  186. im so confused someone please point me in the right direction , i had gone to court back in 2005, me and my ex split up we have a court order she lives with me and goes with him everyother weekend, i never had to sign a paper like listed above but in my court paper it does say her father which really doesnt see her let alone does not support her can claim her everyother year, can i still claim her on eic? i have never really pushed it but seeing i dont think its fair i support her 100 percent and he can claim her?? if not does anyone know of how i can go about having the paper work changed or what paper to fill out without getting a lawer involved considering im a single mom.? someone please help

  187. JDoug on Wed, 16th Jan 2013 8:12 am
  188. This was very useful information and gave us some guidance. One thing I disliked was the bias nature for women. Unfortunately my husband and I are dealing with a situation where his ex wife is claiming both children based (presumably) on the IRS rules. We are not sure of this. The decree states that each are to claim ONE of the two children EVERY year. The decree was issued in 2009 so it is outside the bounds of the IRS. I spoke with the IRS directly and understand that they do not want to get involved. The rules make sense if you have an odd number of children. The IRS indicated that we would need the ex to sign Form 8332 and it has to explicitly state [child's name] and the years she would not claim that child (which would be every year because each parent would have one child to claim each year). She has been claiming both for the last two years without letting us know and now we have to get the courts involved to deal with this matter. Hopefully the decree will stand.

    We support the children 100% medically, and when they are in our care every other WEEK we provide all things including clothes, shoes, supplies, etc. We both work at there schools, volunteer to help in activities that they are involved in, and take them on family vacations. We only spend one day less than the ex a week which gives her the title of “custodial”. Needless to say we provide a lot of support for them and would like to claim the one dependent as ordered.

    Father’s have rights as well and they are not all losers not supporting their children. I had a child as well before I was married to my husband so I have dealt with it from a women’s POV and the fathers POV. I do see how much the father is vilified in divorce and child custody issues. Bottom line – Divorce sucks for everyone.

    Thank you for the information.

  189. Admin Roberg on Wed, 16th Jan 2013 8:22 pm
  190. Hi Amber,
    Here’s the post you want: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    Since you have custody, you get to claim the EIC and head of household status even in the years that your ex gets to claim the exemption.

  191. Admin Roberg on Wed, 16th Jan 2013 9:05 pm
  192. Hi JDoug,
    Sorry about the bias, you’re right. I was trying not to be too murky with the he/she and him/her so I took a viewpoint. But you’re right, there are lots of good dads out there who wind up being victimized also.

    Now, about your issue. Here’s the technicality that I pulled from your post–your husband’s ex has the children for one more day a week than your husband does. That means that she gets the custodial parent rights.

    How this affects your taxes is that although your husband has the right to claim the exemption (and therefore also the child tax credit) the ex has the right to the Earned Income Tax Credit. And, the IRS was correct, the ex should sign a form 8332 allowing your husband to claim a child.

    You might want to check out the post about splitting an exemption, that’s what you would be doing: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

  193. Don Knop on Thu, 17th Jan 2013 6:43 pm
  194. I have a different situation. My final judgement gave my ex-wfire custody of our child and the tax exemption. June of last year, I was awarded custody of the child because of a suicide attempt and she had been unemployed since Febreuary. By the IRS guidleines, I should be able to claim. I know you are not an attorney, but I would win this one as far as the IRS is concerned, right?

  195. Admin Roberg on Thu, 17th Jan 2013 8:17 pm
  196. Hi Don,
    I’m sorry about the suicide attempt. That’s a very difficult situation for you and your child.
    On to the taxes–you’ve had custody since June so you are the custodial parent in the IRS’s eyes. It doesn’t matter what your documents say, the IRS is only concerned with actual time spent with a parent and that’s you.
    I’m 100% confident that you get the head of household designation and the EIC (if you qualify for it.)
    The exemption is another thing. She may still be able to claim that. Technically, if the decree is in 2009 or later, you would have to issue a form 8332 for her to claim the exemption (because now you are the custodial parent)–but I suspect that she’ll try claiming whether you give her the paperwork or not.
    I’d feel 100% confident about EIC and head of household, I’m not 100% confident about the exemption and the child tax credit. I’d really have to drill down in to your divorce documents. Take them with you when you get your taxes done. Good luck, on all fronts.

  197. Heather on Fri, 18th Jan 2013 3:21 am
  198. We found this out last night and about brought me to tears. We have always done what my husband is suppose to do. He pays over $8000 a year in child support for his one child and we never oppose anything. Legally the divorce says we get to claim him on the even years, but now if his ex wife wont sign this 8332, there is a chance the IRS will come after us even though he has never been behind on support. The tax people told us there is nothing we can do. I know she will not sign. She has already claimed him in years 2006 and 2008 when she wasnt suppose to. I feel sick and sad about this. Do we have ANY rights? They dont us the federal government doesnt recongize the state divorce anymore.

  199. Jesse on Sat, 19th Jan 2013 12:58 am
  200. I have 4 Kids with my Ex wife, all four kids live with me and visit her every other weekend(when she decides to take them) there isn’t anything in our divorce decree about who claims the children on taxes, last year i let her claim 2 kids with the agreement that she’d pay back child support but she never did, in 2012 she only paid $300 in child support, i claimed Two kids so she could claim two( just to save the argument) but i claimed all of them for child care expenses, because i paid for daycare ..So can she still claim child care for the two she is claiming? i also claimed 3 of them to get EIC so can she still claim them on that too?

  201. Lary on Sat, 19th Jan 2013 2:11 pm
  202. Is it really necessary to get form 8332 from the ex?

    The ex and I reached a settlement agreement through
    mediation and our decree (after 2008) designates the following.
    1. Both of us are appointed as a parent joint managing
    conservator (no primary custody).
    2. Children alternate weekly between parents.
    3. Father pays mother $2,200 per month alimony for 3 years.
    4. No monthly child support is ordered at this time.
    5. Father has sole right to claim children as dependents and
    gets 100% of child tax credit for current and all future years.
    6. Mother is ordered to execute form 8332.

    Custodial parent per 8332 is “the parent the children lived with
    the greatest number of nights during the year” or, in the case
    of equal nights, the “parent with the higher AGI”.

    Is 8332 really necessary since, per 8332, she is non-custodial
    parent and I am custodial parent (nights or AGI), custodial parent
    executes 8332, and per decree, there is no primary custodian,
    I always get to claim the the children as dependents, and I am
    not releasing my claim for exemptions?

    Thank you.

  203. Jan Roberg on Sat, 19th Jan 2013 7:34 pm
  204. Hi Heather,
    You’re not completely helpless. First–look into your divorce decree documents. I’m guessing that they’re not going to help you because you wouldn’t be on this page, but I just want to make sure.
    It looks to me like the divorce was older since you mention the ex claiming the child in 2006–so here’s the issue: Does the decree say that your husband gets to claim the exemption? Or does it say he gets to claim the exemption if he pays child support? If the decree is contingent on him paying child support–well then the IRS isn’t going to help you. But if it just says he gets to claim the exemption–well then all your husband has to do is make a photocopy of the relevant pages of his divorce decree and mail them in with his tax return. He doesn’t need a form 8332 at all!

    Now here’s the thing–I’m guessing that your husband has “conditions” otherwise you wouldn’t be so worried. In that case–now remember, I’m not an attorney so I can’t give legal advice so you’ll need to talk to a lawyer about this but–in some states you can bring the ex back to court and the judge may even force the ex to sign the 8332. Of course, that costs.

    Now here’s another thing to think about–if you’re really up a creek–perhaps your husband (who is probably much too nice to do this, but I’m not) he might want to make paying his child support contingent upon his ex holding up her end of the divorce decree–as in, no 8332, no check. Like I said, you’ll want to talk to your lawyer about doing that because I’m not sure if that’s a legal thing to do or not. (It’s probably not.) The right thing to do would be to take her to court and have the judge force the issue. It would really be in the ex’s best interest to follow the divorce decree and sign the 8332. (Those court appearances can sure cost and do they make the losing parent pay for the court appearance? Just asking.)

    Now remember, if you do win this, your husband only gets the exemption and the child tax credit. The CTC is worth $1,000 and the exemption is worth a deduction of 3800. If you’re in the 25% tax bracket, then that’s $950. So you’re fighting over $1950. You need to know how much your fighting over before you begin the battle.

    Feeling any better yet?

  205. Jan Roberg on Sat, 19th Jan 2013 9:09 pm
  206. Hi Jesse,
    You have custody and therefore you get the head of household, EIC, and child care credits–no matter what. Your ex does not have custody so she can’t claim any of those things–even if you let her, she isn’t allowed to.
    You may give her permission to claim the children for the exemption and child tax credit, but letting her claim EIC is really fraud.

    Here’s the thing–the child care credit goes to the person who’s house the kids live in. If she has one of the kids more than half the time–well that would be a different story, but she could only claim the child care credit on the child that lives with her.

    Here’s more information about splitting an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

  207. Jan Roberg on Sat, 19th Jan 2013 9:40 pm
  208. Hi Lary,
    So my question is: where to the children really live? That’s a valid question. Your decree says that they alternate weeks. You know how many of those I’ve seen that said “alternate weeks” but really the kids lived with either the mom or the dad. Seriously–divorce decrees that spell out where the kids stay are sadly a joke, and the IRS knows it.

    So, where do your kids live? Are you in one of those rare relationships where the kids really live with you 50/50? Are you able to legally claim them as living with you? If the answer is yes, then you don’t need form 8332. You wouldn’t want form 8332 because if would imply that you do not have custody and you couldn’t qualify for EIC or the child care credit.

    So, if you have had the children for more than 6 months (or 182 days) then you won’t need the 8332 because you are the custodial parent.

  209. Lary on Sun, 20th Jan 2013 10:22 am
  210. Thank you for the response but I do not understand your question “where do the children really live?” I indicated the “children alternate weekly between parents”. There is “no primary custody” so there is no primary residence. They “live” with each parent in separate residences.

    It is my understanding the IRS only recognizes “The custodial parent as the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.” regardless of primary custody/primary residence being specified in the decree. I would interpret that “who” the children live with trumps “where” the children live.

    Yes. I am in one of those rare relationships where the kids really live with me 50/50″.

  211. Pixie on Sun, 20th Jan 2013 2:33 pm
  212. By court order, NCP can claim my son even years if current with child support. Child lives with me fulltime.
    Child support is collected and disbursed to me by state enforcement department.
    The department intercepted his tax refund in November, which they are holding for 6months, and they don’t guarentee full payment. NCP refuses to release payment sooner even though it is an option.
    So I haven’t received over 1/3 of 2012 child support. NCP and Department say that support is current.
    Do I have to release the exemption?

  213. Jan Roberg on Sun, 20th Jan 2013 8:00 pm
  214. Okay Lary,
    But I did have to ask where the kids live (or who they live with) because so many documents say 50/50 even though it’s not. So you’ve really got the 50/50 situation.

    But, the divorce decree states that you get the dependency exemption and that your ex should sign the 8332–that implies to me that they are giving your wife the custodial claim in the decree. Of course, that might not be what your attorney meant, but since you have exactly 50/50 custody and your wife is ordered in the decree to sign the 8332–then it looks to me like she gets the head of household designation (and EIC if she qualifies) while you get the exemption and child tax credit only.

  215. Jan Roberg on Sun, 20th Jan 2013 8:28 pm
  216. Hi Pixie,
    I think this is a question for your lawyer. I’m not qualified to answer that question. (I have an opinion, I think I should whomp NCP upside the head for you, but that’s not really a professional opinion, just my opinion and it doesn’t do you any good.)
    Remember, you are only releasing exemption and child tax credit, not head of household or EIC. (See the split exemption post if you don’t know what I’m talking about.)

  217. Mester on Mon, 21st Jan 2013 10:00 am
  218. I got divorced in 2002 and in my divorce decree it states that I can claim the youngest child and she could claim the oldest child as long as I am current on my child support. I was behind for about a year because of being out of a job for a few months but caught up quickly as soon as I got a new job. I want the best for my kids so I make sure I am always current on my child support and I make sure they have the things they need. Since 2003 I have claimed my youngest and the first year she was ok with this. Ever since she has claimed him also and every year but one I have had to pay that money back. I ask her about this all the time in emails every year I go through this but she refuses to speak with me about this. So I know I need to go back and have the judge switch how the decree and simply not have any clause on me claiming my son. The only thing I was curious about was if I took my ex to court in a civil manner if I would be able to recoup this money? Or will the judge side with the IRS’s decision?

  219. Pixie on Mon, 21st Jan 2013 7:44 pm
  220. Thanks for your response, Jan. The next time I stop at a drive-thru, I’m paying for the person behind me just because I’d buy you a coffee and danish if you weren’t halfway across the country.

    I think you’re correct about legal advice, but I might as well give up the exemption as pay an attorney. So my question is: what will the IRS decide if we both claim the exemption? EIC doesn’t apply (my income is just above the max), but that means I can prove I paid the bills. The court order is from the late ’90s. Unlike some of the posts I’ve read, our living arrangement is simple: just the two of us in our own home. NCP spent zero time with his child in 2012.

  221. Jan Roberg on Mon, 21st Jan 2013 8:07 pm
  222. Hi Mester,
    It sounds like you’re getting the short end of the stick here. I’m not a lawyer so I can’t begin to tell you how a judge would rule. From some of the posts I’ve seen, it looks like it’s different in different states and sometimes just plain old different with different judges–so I really can’t even guess.
    Here’s what I do know–if you have your decree changed to remove the conditions–then it’s a new decree and anything after 2008 requires your ex to sign the 8332 anyway! So that might not help you.
    I did hear of one case where they went to court and the judge ordered the ex to sign the 8332–so that might help. But you’ll need to speak with a lawyer. Sorry.

  223. Jan Roberg on Mon, 21st Jan 2013 8:32 pm
  224. Hey Pixie,
    Thanks. I like Danish! I’m happy with you paying the bill for the person behind you though, that’s sweet.
    Here’s the thing about the IRS–your divorce decree has conditions! That means, that if you claim the exemption, the IRS will side with you. (Now, if your ex takes you to court, that could be a different story, but the IRS will side with you!)

    If nothing else, it wil get his attention and maybe make him pay up on time.

  225. Teather on Wed, 23rd Jan 2013 12:33 pm
  226. I have a question.

    My husband was divorced back in 2004 and he has 3 kids. In the court papers it say she (the ex-wife) can cliam the younger 2 children and my husband can claim the older child. Last year when my husand filed his taxes they was told him that he couldnt carry his oldest child because the IRS made a law to where if the child dont live wiht u aleast half the year he wouldnt be able to carry her and the IRS dont care if it is court order that he could carry her.

    is this true?? what do we do?

    he pays child support all year round. its not fair that she (the ex-wife) gets the child support pluse she gets to carry all 3 children at tax time.

  227. Mester on Wed, 23rd Jan 2013 1:02 pm
  228. Thank you so much for letting me know what the current law is it really helped me in what I need to do!

  229. Nicki on Fri, 25th Jan 2013 8:16 am
  230. I am from Ohio and separated from my ex in May of 2012. We have not went to court yet for a divorce. We have two children together and we went to court in September 2012 to establish child support. In the child support paperwork it states that my ex can claim our youngest child as long as he is substantially current on his support. He did not file for visitation so there is no visitation order. I let him see the kids when he asks but it’s not very often. He is not significantly behind but still is behind on support but he told me he plans on claiming our daughter. Would he be able to claim her since as of the end of 2012 he was still behind on support?

  231. Jan Roberg on Sun, 27th Jan 2013 9:44 am
  232. Hi Nikki,
    Your husband can only claim an exemption and child tax credit, no EIC or head of household. Also–he should only be able to claim that if you sign the form 8332 allowing that.

    As far as the IRS is concerned–he can’t claim her without it. Now he’ll probably try, and if you fight you win. But just know what to expect.

    Since your divorce isn’t final, his only options for filing are married filing jointly or married filing separate. MFS is a really bad filing status.

    You can claim Head of Household because you’ve got the kids–and that’s a really advantageous filing status.

    You may want to negotiate signing the 8332 form for him–as in “Okay ex, if you catch up on the child support I’ll file the form–otherwise you can’t claim your daughter.” Or you might want to be nice and just let him claim anyway.

    But, if you’ve been working and have earned income–don’t let him claim that he lives with the kids–you don’t want the precedent there. They live with you and that’s important on your taxes and your financiall health.

  233. rohn on Sun, 27th Jan 2013 6:15 pm
  234. My child is 21 years old. I stopped paying child support in 2010 when she was 19. I live in washington state. Even though the divorce decree states that I have the right to claim her as a dependent, I never have and my ex wife always has. This month, she wrote and told me that she wants me to split the medical costs that she has incurred through her work deduction all last year – $1,200 as well as 100/month payments until my daughter is 26. I figure since she claims head of household as well as gets the exemption, I should not have to give her anything. She wrote me a nasy letter and when i responded with, okay, but i;ll take the exemption this year, she stated that it only holds true while i was paying child support? Although, I provide for my daughter in other ways, cars, car maintenance, insurance, college costs, it seems like my ex just wants me to write her montly checks forever

  235. Aaron on Mon, 28th Jan 2013 3:01 pm
  236. Please help. I have raised 2 older children alone.. remarried and had a 3rd and unfortunately got divorced. I have no court order just my divorce agreement which states she can claim the child at the end of the year and custody will be completely 50/50. Because of her issues I have had my daughter 100% for the past 7 months and she has not contributed anything. I know court is down the road for custody but what can I file legally this year? Head of household and EIC and just let her file claiming a dependent. She will try and file w dependent head of house and the EIC. She just wants the money of course and has no responsibility. Can I file a EIC and head of household and be ok? Or will it get kicked back? Would I have to repay any return I recieved? Please help w any info. Sincerely, Aaron

  237. Jan Roberg on Mon, 28th Jan 2013 9:26 pm
  238. Hi Rohn,
    You have a couple of issues but you’ll be able to answer those questions.

    First–is your daughter able to be claimed as a dependent at all? She’s 21. Is she is school full time? If not, does she make less than $3800? Does she live with your ex or on a college campus? Or is she disabled? Basically, if your wife can claim her, then she can be claimed.

    If she can be claimed as a dependent, then it would be possible for your wife to give you the exemption. Doesn’t matter about the divorce decree–this is a post decree kind of thing. She would sign an 8332 form to allow you the exemption.

    There’s no EIC or Child tax credit for you though so the exemption is only worth your tax rate times 3800. So, if your tax bracket is 25% then the exemption is worth $950. If your tax bracket is 15%, then the exemption is worth $570. It’s important to know how much you’re getting out of this to see how big of a fight you want to make of it.

    But the bottom line is–I don’t see there being a reason she couldn’t release the exemption to you.

  239. Brian on Tue, 29th Jan 2013 3:19 am
  240. I have a question. My ex-wife and I have joint legal and physical custody of our daughter. My daughter lives with her mom most of the year and I take her every other weekend and as often as I can on other days. My divorce decree says that I can claim my daughter every odd numbered year. The question being, my ex-wife claimed my daughter for 2011 (my last “turn”) due to issues where I was unable to see my daughter for a good chunk of that year, so, my ex-wife said that I could claim her this year even though it is technically her turn. Is this at all legal or is this going to get me into trouble with the IRS?

  241. Brian on Tue, 29th Jan 2013 4:09 am
  242. I guess that I should also add that our divorce was finalized in the early part of 2008. There have been 1 or 2 years where she’s let me claim our daughter when it was her turn but those years it was also debatable on who our daughter actually stayed with the most that year, but this year she has definitely spent more time at her mother”s house. My ex-wife and I are on friendly terms I should also add. I just want to know if this is legal or not for me to do this even though she has no problem with it.

  243. Jan Roberg on Tue, 29th Jan 2013 9:25 am
  244. Hi Aaron,
    You’ve got it right, you should claim head of houshold and EIC, she should claim the exemption. If she over claims (and I’m guessing she will) your return will be delayed for 75 days. But that’s better than in the old days. You will win your case and you’re in the right. Get your ducks in a row now to prove the child is with you. Dad’s tend to be, shall we say, “looked at more carefully”–so just be prepared. You do have custody, you can prove it. Good luck.

  245. Jill on Tue, 29th Jan 2013 12:41 pm
  246. Hi. My daughter was born “out of wedlock” in November 2012. Her father and i still have seperate residences, although we have always been in a devoted long-term relationship together. We sleep at his home 2-3 nights each week, and he sleeps at ours 1-2. For tax purposes, i first assumed i am the ‘custodial’ parent since she obviously spends ALL of her ‘nights’ with me and he only gets to sleep with her 80% of the time. I intended to sign the 8332 so he could claim the exemption and child tax credit, while i would still claim the EIC, etc. (It may be worth noting that his income is too high to qualify for the EIC anyways, and the exemption would not really help me since my income is so low.) However, apparently one of the conditions for this special rule is that the parents must have “lived apart at all times during the last 6 months of the year”. First of all, does “live apart” mean each of us financially maintains a seperate household, or does it mean each cannot sleep at the other’s house? And if you say we are considered living ‘together’, would i even be the custodial parent at all? (I am assuming highest income is the determining factor in who gets to claim the child for unmarried parents living ‘together’.) But most importantly, does our situation mean i cannot claim the EIC or head of household anyways? Because although i lived with her every day, he also slept with her for over half of those nights??? Thank you for any advice at all. I realize our arrangement is quite uncommon!

  247. Liz on Tue, 29th Jan 2013 12:47 pm
  248. If there is a clearly written court order in a finalized divorce decree stating that one parent claim one child each
    (there are 2 children) on taxes. Isnt it a major breach if the mother custodial, refuses to sign the 8332, and claims children every year. isnt that illegal. this has been going on since 2004, because he doesnt claim a child, he ends up owing the irs money.
    please advise.
    Thank you

  249. Okalani on Tue, 29th Jan 2013 1:32 pm
  250. On the form 8332 it states on part 1 “release of claim to exemption for current year” does that mean this year 2013 or 2012?

  251. Jan Roberg on Tue, 29th Jan 2013 8:26 pm
  252. Hi Brian,
    Parents working together for the sake of their child are “good people”. As long as you and your ex agree about switching–you’re fine. Have your ex sign an 8332 form for you. You will claim the exemption and child tax credit–your ex will still be head of household and if she qualifies, she’ll get the EIC. And doing that will all be legal and tidy.

  253. Jan Roberg on Tue, 29th Jan 2013 9:09 pm
  254. Hi Jill,
    You have separate residences. Go ahead and split the exemption.

  255. Jan Roberg on Tue, 29th Jan 2013 9:15 pm
  256. Hi Liz,
    He has a 2004 court order. If there are no conditions, he can attach the pages of his divorce decree to his tax return and just claim the exemption. No waiting for an 8332 form.

  257. Jan Roberg on Tue, 29th Jan 2013 9:18 pm
  258. Hi Okalani,
    You fill in the tax year that the form is for–so you’d put 2012 for this tax season.

  259. cathy from mn on Tue, 29th Jan 2013 9:19 pm
  260. hi jan
    i was divorced since july 2009 and in the divocred decree we rotated every year.last year of 2011. my ex husband ask if he claim all of our three kids.(he claims 2 and i claim 1 of 2011). and promise to give me money but never did. last year i told him i was claiming all 3 since i didnt claim any. i found out this year he did his taxes and claim 2 instead of 1 and what should i do ??? i followed our divorced decree and he hasn’t.

  261. Trinity on Tue, 29th Jan 2013 11:03 pm
  262. My divorce was finalized early in 2008. We have one child. We have a shared parenting plan that states each parent is designated residential and legal custodian of our child during each parents respective parenting time and then names me residential parent for school placement purposes. I have our child the majority of the time. In our plan my ex gets every other weekend and one night during the week (he only takes our child every other weekend). In our decree it states that my ex can claim him in even number years and I get odd number years. It was suppose state that he could not claim our child if he were not current on child support however that was left out. It also says that each year the appropriate parent shall make available to the other parent all irs forms (currently irs form 8332) to effectuate the terms of this provision. I did not have the money to take my ex back to court previously about the clause that was left out regarding back child support. I have claimed my child on all years to this point. Now my ex is threatening to send papers in to the irs so that I get pentalized for not allowing him to claim our child. I have no idea which direction I should go with this or what I can/should do so I do not get pentalized. Please help.

  263. Jan Roberg on Wed, 30th Jan 2013 8:49 pm
  264. Hi Cathy,
    1. Don’t count on your ex to give you money that is rightfully yours to begin with.

    2. File your tax return the way you are supposed to file. Do you have custody of the children? Not “what it says in the divorce decree” I mean do the children live with you? If yes, file and claim what you are entitled to. Give him the exemptions and CTC to the child he’s entitled to. See this post: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

    You might have to fight over it so make sure you’re in the right with the IRS for whatever you claim. Then go for it.

  265. Jan Roberg on Wed, 30th Jan 2013 8:55 pm
  266. Hey Teather,
    Sorry I skipped you, I thought Mike had answered it. You asked about your husband claiming his child even thoough he lives in a different state.

    Court ordered exemptions are just that: EXEMPTIONS. It also includes the child tax credit. You don’t have to live in the same state in this case because the ex can sign an 8332 form.

    Your husband cannot claim EIC on his child because the don’t live together. He and his ex can split the exemptions–meaning that your husband gets the exemption and CTC and his ex gets the EIC and head of household designation. Here’s more info: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

  267. Jan Roberg on Wed, 30th Jan 2013 9:29 pm
  268. Hi Trinity,
    Your ex is just being a jerk. You divorce decree was in 2008, and it has no conditions. He could just use the divorce decree to claim your child–he doesn’t need you to sign anything. There was never any need for you to sign the 8332. I’m guessing that he finally figured that out. But claiming that you didn’t allow him? Really?

    Now–he would only get the exemption and child tax credit anyway. You always ALWAYS always get the EIC and the HH designation. Always.

    So–worst case scenario–he goes to the IRS and files back taxes–the farthest he can go back is 2009, if he waits until after 2009 then he’s lost that too. (Statute of limitations.) So–he get’s even numbered years (oh–who cares about 2009 then?)

    So all he’s got to argue about is 2010. Okay that $1000 in CTC and some money for the exemption–between $400 and $900 about depending upon his income. That’s the worst case scenario.

    So–here’s your weapon. Since he owes back child support, the court should be levying his refund to pay you. Make it so–and then you’d get the money back anyway as your child support! (Okay, it doesn’t work that easy, but still it is kind of a burn on him now isn’t it?)

    I shouldn’t be so mean to your ex but I decided that I like you and I don’t like him so I can’t help it. (I hope you’re nice, I really don’t know you either.)

    Anywy, hold your head up. You know what the worst is and it’s bearable. Here’s more information on splitting an exemption like for a court ordered exemption case: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

  269. Gina on Wed, 30th Jan 2013 11:27 pm
  270. ok, so my ex and I divorced in jan 2010. In the decree it states that he claims the two oldest children and I claim the youngest. I am the custodial parent of all 3. Just found out that he was supposed to have me sign an 8332 in order to claim the 2 oldest but he never did. I have tried to talk to him but he never answers or returns calls or texts. I am tired of trying to help him get things done right and since he is WAY behind on support, I feel I should just go ahead and claim all 3, as by IRS rules, I have the right to.

    How big of a can of worms will I be opening when he files claiming the 2 oldest, even without the 8332?

    If I continue to be “nice”, HOW do I claim the two for the EIC on my return?
    I make way less than he does.

    Thanks in advance!

  271. John on Thu, 31st Jan 2013 7:22 am
  272. hello jan, I would you to know that I found this site off a google search & you are very, very helpful. this is my first year filing taxes for my son & his mother is making this difficult. for one we are not together & haven’t been some before he was born, which was June 24, 2011. after his birth she told me his wasn’t my child, & after months of her games a DNA test revealed that to be false he was mine. it wasn’t til December where I was given visitation rights & last January joint custody. our court order states a number of details such as I have his Wednesday nights & every other weekends (but we had an agreement which was clear in court that they got wrong which we follow that I would have him Monday nights as well) following this schedule gives us both four nights each & every other weekend. also the court order states “ORDERED, that the defendant shall be entitled to claim the minor child for federal & state tax purposes in even-numbered years & the plaintiff shall be entitled to claim the minor child in odd-numbered years”. now the problem occurs today, she had filed her taxes before me & she filed EIC but didn’t use him as an dependent, my problem is she says I’m not entitled to eligibility for EIC since she pays for his dental & medical insurance (which was already handled before the joint custody I might add). I know for a fact that I had my son more nights than her because I had more holidays, during doctors visits when I took off I keep him & odd occasions she “needed” me to watch him. I need your advice & greatly appreciate it to see if I should be or can get EIC.

  273. John on Thu, 31st Jan 2013 7:26 am
  274. & also i pay $250 child support, every month, on time. :)

  275. Charity Townsend on Thu, 31st Jan 2013 1:17 pm
  276. I live in Ohio. My divorce was final in December of 2011. My divorce decree states the ex gets to claim 1 child, and I get to claim the other. I never signed a form 8332. Does the ex have to have this form before he can claim our child or can he simply send a copy of the decree with his taxes? he owns a small business if that matters. What happens if I claim both children since he never got a form 8332 signed? can he still claim that child if I already did or without the form? Thanks so much for your time!

  277. holly on Thu, 31st Jan 2013 4:05 pm
  278. i was wondering what if the parents were never married but the custody papers state that the respondant claims child on even and the petitioner odd years..and she is threating to call a laywer because she wants to claim the child on the even year? do we just uphold our end of the court ordered tax filing?

  279. Jan Roberg on Thu, 31st Jan 2013 9:35 pm
  280. Hi Gina,
    You can still claim the oldest two for EIC. Here’s how you split the exemption: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

  281. Jan Roberg on Thu, 31st Jan 2013 9:51 pm
  282. Hi John,
    Your post states that you weren’t granted visitation until December–therefore you do not have equal or more days. Your ex gets the EIC. She’s giving you the exemption as ordered in the decree. She did the right thing on her taxes. Sorry.

  283. John on Thu, 31st Jan 2013 11:06 pm
  284. thank you but I have a feeling I wasn’t clear, maybe didnt war what I think I wanted to hear lol. December 2011 I started taking care of my lil man. because of my work schedule I got off at 8 & picked him up as soon as I got off. I was under the impression that EIC goes to the parent who had the child the most nights, which I’m sure I have had the most nights during the year of 2012. I had him EVERY wendesday & monday night last year with the exception of one Monday where I was sick.. am I still “screed over” lol? also, I would like to ask you will I be able to file for EIC one day as the schedule changes & he stays with me more & longer, he already prefers me & doesn’t want to leave almost everytime she picks him up.

  285. jeff on Fri, 1st Feb 2013 11:17 am
  286. Hey Jan…..just will cut to the chase on this one………divorced in 1996 Joint custody but mom has had custodial rights….decree stated she could claim her as a exemption which I have allowed …no problems … ( she is emancipated)now she is in College 19 years old full time student and living on campus….I lost a job and can I claim her under EIC? Mom makes alot of money and would not quilfy for EIC……..can I ask for the EIC even thou she has not lived with me for more than 6 months….what will happen if she lives on campus ( out of her moms home) till she is 24 Years old per the IRS ???? thanx Jeff

  287. John on Fri, 1st Feb 2013 12:51 pm
  288. Jan, sorry for being difficult & a ton of misspelling. I am sending all this through a mobile device. the more I read & understand that I do qualify for EIC I get more upset. ok, fact my child was born June 2011. December 2011, I was ordered visitation for every other weekend. Jan 27 2012, I was granted joint custody & have had my son for more nights then his mother, FACT. I have been to his doctor appointments, with her as well, but his address shows hers. Dentist appointment & the address says hers. even though I have cared for my child every Monday & Wednesday night except one night the court order only says I have him Wednesday & every other weekend but I can’t show any proof. his other parent is extremely difficult & has used him as a “pawn” from day one but rules these days favor the mothers almost always. so what can I do in the future to make sure I am entitled to everything I am eligible for, caring for my son. I do plan on going to court again this year & getting everything processed correctly. I am extremely thankful of you & wasting your time, if I was more aware of the “benefits” or “exemptions” of claiming a child on taxes I would have made sure all this was handled before. love ya lol.

  289. Jan Roberg on Fri, 1st Feb 2013 9:35 pm
  290. Charity,
    is there any good reason for you to disobey your court order? Sign the 8332 and let your ex claim his child.
    He cannot use the divorce decree to claim your child, but so many people file without having the 8332 form that it’s unbelieveable. There’s nothing in the computer software to keep that form happening.
    Now–if he’s done nothing wrong and you’re just not signing the form because you “don’t feel like it” then you’re being a jerk. I don’t think that’s the kind of role model you want to be for your children.
    When you release the exemption, you still retain the rights to EIC if you qualify.

  291. Jan Roberg on Fri, 1st Feb 2013 9:48 pm
  292. Hi Holly,
    I recommend obeying the court order. Remember though, the court order only covers the exemption–the parent that the child lives with the most can claim head of household and EIC.

  293. Jan Roberg on Fri, 1st Feb 2013 10:26 pm
  294. Hi John,
    I’m still reading Monday and Wednesday. Where is the child Tuesday, Thursday, Friday, Saturday and Sunday?

    EIC will go to the person who has the child the longest. So–how are you going to prove it? Here’s a post about the proof to provide: http://robergtaxsolutions.com/2012/11/what%e2%80%99s-new-with-the-earned-income-tax-credit-you-need-to-know-this/

    Do you have a diary of the nights you had him? Or anything? Medical records are the best proof for really little ones so you’ve got a tough road ahead of you. What you’re trying to prove is 184 nights. That’s what it comes down to.

  295. John on Fri, 1st Feb 2013 11:32 pm
  296. we have alternating weekends. starting on Friday. but thank you again, i’lll give the link a look. I pretty settled in on the thought I couldn’t do much at this point this year & it’s no point trying explain anything to the mother. thank you for your time again, I am grateful.

  297. Jan Roberg on Sat, 2nd Feb 2013 12:55 pm
  298. Hi Jeff,
    It sounds like your daughter never really lived with you and she probably doesn’t claim your address as her home. I’m also guessing that she uses your ex’s income on her financial aid application too. I’m sorry but you won’t be able to claim her for EIC.

  299. Heather on Sun, 3rd Feb 2013 11:59 pm
  300. OK, I have a question regarding amended returns. Upon reading your responses to the questions on this website, I believe I might be able to amend a bunch of my prior years returns to receive one of my sons as a dependant, and alas receive the additonal money back I was initially due. Ok here is my issue. My ex-husband and I were divorced in 2000, we have 2 sons together. Our divorce decree states that my ex-husband, the non-custodial parent, gets to claim both children as dependants unless I make 6,000 in a calendar year. If I, the custodial parent, make 6,000 or more in a calendar year, I am then allowed to claim the youngest child as a dependant for that tax year. Here is the issue I have been facing for just about every year for the past 12 years. My ex-husband is in the military, and he has absolutely “zero” contact with our boys. I never know where he lives and I have always tried to find him each year to let him know I met the stipulations listed in our divorce decree and would be taking our youngest, but more often than not I have not been able to locate him. So I would file my return on the first day eligible for e-filing only to have the return kicked back to me saying I was unable to claim one of my dependants listed, so rather than go through the hassle and have to wait., I would then just file the return without him listed and essentially allow my ex to claim him even though by what was stated in the divorce decree he was not allowed to. Luckily for the first time in 12 years this year, I finally beat him to the punch and was actually able to claim my son. Basicly my question is, am I able to go back and amend the returns where he claimed him, since there is a stipulation listed in the decree, since that is not proof enough for the IRS? and if I am, how far back can I go?

  301. Lisa on Mon, 4th Feb 2013 1:58 pm
  302. Hello! I have tried to read through all of this to be sure you haven’t already answered…so I do apologize if this is redundant.

    2010 Court Orders read “The Parents will alternate the Federal Tax Dependency Exemption with the Father having odd numbered years. Starting in 2011, Father may claim minor child for that purpose…”

    I interpret this as he gets to claim our son for the tax years 2011, 13, 15 etc.

    He believes this means he claims our son in the odd years that he files…meaning he is intending to claim our son on the taxes he files this year for tax year 2012.

    It has not been an issue prior to this because he has not been current on his child support until now (part of the court order and CO law)

    Can you clarify how the IRS would interpret the odd years in the Court Order? Please and thank you.

  303. Jan Roberg on Mon, 4th Feb 2013 9:51 pm
  304. Hi Heather,
    If you do it before April 15th, you can go back to 2009.

    Now remember, even if you can’t claim the exemption–you can claim the EIC and head of household filing status–that’s important, especially if your income is low. Even if your income is under $6000 and your ex gets the exemption for both boys–you still get the EIC.

  305. Heather on Mon, 4th Feb 2013 11:35 pm
  306. Thank you Miss Roberg. I am remarried and have been for quite sometime so my husband and I file as married-filing-joint. I have been claiming both the boys for EIC for as long as I can remember also, but thanks for the help with the year I can go back to. I know its been a long time but my son’s could really benefit from that extra money especially seeing as they are now both teenagers, and as parents of older children know, the older they get, the more money it takes to raise ‘em.

  307. Heather on Mon, 4th Feb 2013 11:40 pm
  308. And as far as the 6,000 income I have made that every year even including the initial year of our divorce, I have no idea why the judge used that amount, since it’s such a low amount and I currently and have always made more than that amount.

  309. Jan Roberg on Tue, 5th Feb 2013 8:02 pm
  310. Hi Lisa,
    You’re right. (You know it, don’t you? You are right.) Right now, in 2013, we are filing for tax year 2012–and that’s an even numbered year.

  311. sueanna on Wed, 6th Feb 2013 9:33 pm
  312. Hi, I was divorced in 2010 and it was court ordered that my ex was to claim my son and I was to claim my two daughters for tax purposes..well he took me back to court in November 2012 to emancipate our son so he would no longer have to pay child support on him..he is now 20 and decided to not return this year for college..and he started staying with his dad so it was fine by me that he did that..we did not revise anything about the taxes..I am claiming both girls like i always have and like it states in our divorce court paper..he just informed me that he is claiming one of the girls since he no longer can claim our son. I told him no that i did not give up my rights to him to do that..I’m sure he will get a lawyer and try to take me back to court..I’m very upset..we have joint custody and I have physical custody..He makes more money than me but the girls stay with me more overnights than with him. and I make more money than what he pays me in support. What do you think..I feel like the first court order is still what we should be going by at this point. and if he takes me to court I will fight it.

  313. Ronald Smith on Thu, 7th Feb 2013 12:21 pm
  314. what is the irs.code for more than one person claiming the same dependent?

  315. Stacia on Thu, 7th Feb 2013 11:26 pm
  316. My fiance and his ex wife have 50/50 custody and an agreement that they take turns claiming taxes on their child each year…as long as he is not behind on support. Last year was her year to claim him and since she didn’t work, she had her boyfriend who she lived with all that year claim him. Is this legal?

  317. Stacia on Thu, 7th Feb 2013 11:36 pm
  318. Also it says in their divorce papers that she must consistently hold a job and him also, but she hasn’t worked for 2 years. He has mantained the same job.

  319. Mrs on Fri, 8th Feb 2013 7:14 pm
  320. Hi, I have a question on my husband’s behalf: Per his divorce decree, he is required to claim his daughter on his taxes and split half with his ex-wife. He did t his; however, we apparently filed our taxes too soon so even though he mailed out a postal m.o for half the taxes, child support turned around and took another half out of his return. So the ex-wife, got more than half the money allotted by the courts. The half child support took was to cover arrears which he was on disability a few months and didn’t make enough to support his $220 every week, but upon returning the payments continued. My basic question is, can he dispute the half he mailed to her and get a refund back since both fees are covering the same thing? Thanks for any info you can provide

  321. Jan Roberg on Sun, 10th Feb 2013 7:25 pm
  322. Hi Sueanna,
    Remember, I’m not an attorney and cannot give legal advice. I can give tax advice and it seems to me that your in the right as far as the IRS is concerned.

  323. Jan Roberg on Sun, 10th Feb 2013 7:28 pm
  324. Hi Stacia,
    It is illegal for his ex-wife to let her boyfriend claim the children if he claimed EIC. If he did not claim EIC, then he might be able to claim them for the dependency exemption.

  325. Jan Roberg on Sun, 10th Feb 2013 7:32 pm
  326. Hi Mrs,
    It seems you’re dealing with a legal issue not an IRS issue. The court order requires that he split the refund–which he did. It’s not the ex-wife’s fault that your husband was behind in the child support. This isn’t really an IRS issue, it’s a court issue. He won’t be able to do anything with the IRS.

  327. Chris on Mon, 11th Feb 2013 11:59 am
  328. Hi Ms. Roberg,
    I have a question that is in the same genre. Can one parent claim the exemption for the children while the other parent claims the tax credit? If so, does the IRS care who does the claiming? For instance if one parent phases out on the credit but does not phase out on the exemption while the other parent does not phase out on the credit. Thank you,

  329. Jan Roberg on Thu, 14th Feb 2013 7:27 pm
  330. Hi Chris,
    you’ll want to read my post on spliting exemptions. There are rules that need to be followed. There’s a link in the blog post.

  331. Michael on Mon, 18th Feb 2013 2:51 pm
  332. My wife and I were divorced in 1999. Wife was custodial and I was non-custodial. I paid full child support, and we alternated tax exemption annually. Wife moved out of state with new husband but agreed to my state’s jurisdiction. In 2008 daughter came to live with me and stayed, lawyers, etc., modification stated I am now custodial and I agreed to waive child support. It’s been almost 4 years since court. Question is, should I still be obligated to share tax exemption if she doesn’t pay support? She volunteered $100 per month in the beginning and now sends almost nothing. Should I just claim her?

  333. Mellissa on Tue, 19th Feb 2013 12:48 pm
  334. Hello,
    I will try to keep this as simple as possible. My husband was divorced in 2006 and he has two children. The children live the majority of the time with mom so he is not head of household. Although, his child support order states that he recieves the federal tax exemption for the oldest child every year as long as he is current with his child support obligation along with medical and counseling expenses by December 31 of that year. The order also states that his ex is required to sign Form 8332 each year. He successfully took the exemption in 2006, 2007, and in 2008. In 2009 his ex claimed BOTH of the children and he claimed the eldest (as per the order states). The IRS ruled in his favor after he sent them a copy of his Order of Child Support and proof that he was current with his child support (he has never even been a day late). Although, the ex must have also sent some “proof’ and the IRS said that my husband owed them money. His ex since then has taken the exemption (for BOTH children) for 2010 and 2011. Her reasoning are very petty and have nothing to do with child support, counseling, or medical expenses. An example is one year she felt the right to take the exemption because my husband did not pay their son’s preschool tuition until Jan. 2 instead of by Dec. 31. He couldn’t because they were closed for the holidays and they did not re-open until Jan. 2. She was aware he paid but she still took the exemption. She has never agreed to sign Form 8332. My husband has thought about going to court over the issue but his ex has taken him to court at least 4 times per year and he (and I) want to try to stay out as much as possible. Although, the ex has most recently said she was going to take the tax exemption again for 2011. She is trying to claim that my husband did not pay a court appointed Parent Coordinator by Dec. 31st. Basically, she is acting in “bad faith” each year. I know you are not an attorney but is it reasonable for my husband to claim the eldest child per the Child Support Order? Do you feel like contacting an attoney would be in his best interest.? Thank you.

  335. linda gigliello on Tue, 19th Feb 2013 8:31 pm
  336. I wanted to know my adult boys that are emacipated in the state of illinois and do not receive child support live with me and I claim head of house hold my ex says he should be able to claim the children I have not signed any documents otherwise the divorce says that once the children are not claimable on the return he can not claim them so by illinois state law he cant right

  337. Deana Forrester on Tue, 19th Feb 2013 11:14 pm
  338. I was divorced from my children’s father in 2004. We have joint custody with me as primary custodial parent. In the decree, it states that I claim the children on income taxes. The father of the children moved out of town and only saw the children every other weekend. In October of 2011, the children wanted to go live with their father. We did not go back to court. We just had a verbal agreement and the divorce decree never changed. They lived in his home from October 2011 to May 2012. In May of 2012, the children came back to live with me. I claimed the children for 2012 income taxes. This year, he notified me that he had filed and had claimed one of the children. Again, the divorce decree has never been modified and still states that I claim the children. Is he in the wrong and if so, what can I do about it?

    Thank you,
    Deana Forrester

  339. Brie on Thu, 21st Feb 2013 9:35 am
  340. Hi! What a great source of info! I do have a question on this exact topic. My fiance is the noncustodial parent. His 2 minor children live out of state and have for about 3 years. The court order written in August of 2008 states that they have shared custody adn that he is to claim both children, period. There are no conditions such as child support in the order. That order is still in effect to this day. He has allowed her to claim 1 of those children verbally for the last 2 years to help with the income to support the children as well as over $2500 in checks written to her over a 6 month period in 2012. No documents have been signed to prove that or amend the order from it’s final state.

    This year she allowed her new husband to claim both of his children against his wishes stating that he has contributed “nothing” to the household to take care of the children. In my eyes the checks and the allowance of the exemption and all that goes with it counts as support that was not ordered. We are currently in the process with a lawyer to modify the agreement in many, many ways. Given the order and what she has done does this sound like a solid fight? He is planning to discuss this with his lawyer b/c he has not yet filed his 2012 returns yet. If attaching the document is all it takes to audit them then this is a good thing. Also, do the checks that he wrote her on good faith that they are going to the kids needs count as taxable earned income for them since they are not labeled “support” by the order?

    Your help would be greatly appreciated!

  341. janet on Mon, 25th Feb 2013 12:26 am
  342. I have a problem my ex husband is claiming my daughter this year per the decree but he does not see he or speak to her at all she leaves with me and my curent husband 12 months is there anything we can do to stop this ?

  343. KML12 on Tue, 26th Feb 2013 10:36 am
  344. This is utterly ridiculous! My husband has custody of his children 50% of the time, pays his child support, pays insurance, and buys them clothes to have here becasue she is to lazy to pack for her children and now we are being told he doesn’t get to claim them for EIC??? Seriously all she does is have them 50% of the time, gets food stamps, gets state funded insurance, and complains about how tired she is from answering phones at a beauty college all day. My ex and I alternate every other year for tax credits on our children and I would gladly sign the paper allowing him if it ever became an issue. He has the children every other weekend, every other holidays, and six weeks in the summer and whenever he can, I never say he cannot see his children. He pays his child support, medical insurance, splits costs of extra-curriculars too. Why would I not allow him to claim the credit? Selfish women now days want nothing but revenge and hold on to so much animosity. We have moved on and do what is best for our children, isn’t that what it’s all about?

  345. Jan Roberg on Tue, 26th Feb 2013 9:31 pm
  346. Hi Michael,
    The thing is, your court order still gives your ex the exemption. You’re asking me if you should violate your court order–I am not allowed to say yes. Sorry.

  347. Jan Roberg on Tue, 26th Feb 2013 9:34 pm
  348. Hi Brie,
    Alimony is never counted as alimony unless it explicitly is called alimony. So no–you can’t take a deduction for that.
    About the exemptions–sounds like your finace has a solid case. Attach the pages of his decree to his tax return and mail it in.

  349. Jim on Sat, 2nd Mar 2013 10:31 am
  350. Good Morning! I have read quite a bit in all of the posts here and I think you may be able to provide me with some insight. :-) The divorce was in 2009. I have a signed 8332 (Part I-for the current year 2011, as well as Part II-for All Future Years). It was signed on 2-6-2011. My current wife and i have filed each year without difficulty (2010 & 2011). This year, we tried to file electronically for the first time, and it was rejected. I thought it was rejected because I had to attach my 8332, so we mailed the return as we have the past few years. Then, I found out that my ex claimed one of our 2 sons who is listed on my 8332 last year AND this year. I received no notification at all from her, not even a verbal. After researching a bit, I have read in many places that I am supposed to receive in writing a revocation for the 8332, which is then effective for the following tax year. Is this correct? I feel like my ex is again trying to take advantage of us (my wife and I). What else can we do in this situation? This is the first time in 3 years that we were going to have a refund and now we are concerned that we may not see it. Thank you for reading my rantings :-)

  351. kenna hall on Sat, 2nd Mar 2013 10:45 am
  352. can i take my wifes x husband to court for the right to claim her daughter as a dependant on my tax return? he pays 45 dollars a week child support and makes more money then me a year, and i spend alot more money on her throughout the year..

  353. Jan Roberg on Sun, 3rd Mar 2013 2:03 pm
  354. Hi Melissa,
    I would definitely contact an attorney. There’s the whole IRS rule about conditions–so you don’t win with the IRS (although you have before so you’ve got that in your favor). But clearly–altough I’m not an attorney, but clearly in the common sense world–your husband is in the right.

    So, since she’ll take him to court anyway–maybe you want to wait for your next court appearance and ask the judge force her to sign the 8332 permanently. Then you don’t have to deal with her Mickey Mouse garbage anymore.

    If you don’t ask, you don’t get. If he won’t force her to sign it permanently, then at least for the tax years that she’s already messed you up on.

  355. Jan Roberg on Sun, 3rd Mar 2013 2:08 pm
  356. Hi Linda,
    You’ve got a question that I’m not ready to answer. You say they are adult boys–how adult are they? If they are over 19 and not in college then they can’t be claimed as dependents unless they live with you and make less than 3800 a year.

    So if you’ve gove 35 year olds making $25,000 a year and living in your basement–well of course your ex can’t claim them.

    But you say you’re claiming head of household–so—–I’m guessing they can be claimed. Right? Illinois state law is not my field. Federal tax rules are.

    If they can be claimed on a return, you may release the exemption–but that’s a choice. It sounds to me like your divorce decree doesn’t force the issue after the boys turn 18. But you might want to check with your divorce attorney to be safe.

  357. Jan Roberg on Sun, 3rd Mar 2013 2:11 pm
  358. Hi Deanna,
    It sounds like the children lived with you for more than 6 months of both years. That gives you the right to claim them. If you chose to fight, then you mail your tax return in, claiming both children.
    Get your ducks in a row, round up the details of when they moved back in, where they go to school, and all that stuff. You’ll probably be asked to prove they lived with you.

  359. Jan Roberg on Sun, 3rd Mar 2013 3:40 pm
  360. Hi Janet,
    You’ve got a court order to allow your ex to claim your child. You’ll need to go to court if you want to change that. Sorry.

  361. Jan Roberg on Sun, 3rd Mar 2013 3:48 pm
  362. Hey KML12,
    Sounds like your husband is a good guy–but I’m having an issue with his having the kids 50% of the time. You say he gets them every other weekend and six weeks in the summer.
    Let’s do the math: every other weekend is 26 weeks time two is 52 days.
    Now six times seven is 42. 52 days plus 42 days is 94 days. There are 365 days in the year so he doesn’t have the kids 50% of the time.

    Sorry, but the IRS is pretty hard core about custody. He doesn’t get EIC.

  363. Jodi on Tue, 5th Mar 2013 12:02 pm
  364. If my son turned 18 in May 2012 and our divorce decree states that we take odd even years for the minor child as long as child support remains current, who can claim the exemption in 2012? Our divorce was finalized in 2001 and during 2012 he lived with me 95% of the time and I supported him. HIs father did give me a little child support (not 1/2) in 2012 and still continues because our son is in a transition school through the school district. I am the custodial parent so can I claim him in 2012 since he is no longer a minor?

  365. Sunny on Tue, 5th Mar 2013 2:17 pm
  366. Here is a interesting one for ya. Here is the background. Got married in 99. Husband moved out in 04. We have 1 child together and I have a another child from a previous relationship. In 2010 child support enforcement set up child support from my husband. My question is can we file taxes together since we never filed for separation (besides FL doesn’t have legal separation) but do have a child support order in effect? If so, who address do we use? Also, I didn’t work at all least year so any money received was child support from 2 different fathers (1 my husband and 1 previous relationship father). I have asked different people and have gotten different answers…lol

  367. chris on Wed, 6th Mar 2013 1:33 pm
  368. I have an issue with getting my ex to give me the tax papers from the childcare services that i am court ordered to pay. she says that i am ordered to pay it not claim it… i dont see how this is possible for me to have to pay something and not get any of my money put into it back at tax time. please let me know if there is anything i can do about this and what steps to take. i have all my payment reciepts showing that i have paid and am current on all payments and yet i am having the hardest time getting what is owed to me. we have been divorced since 2009 and i have claimed it the past 3 years. 2012 is the year that i am having an issue getting this done.

  369. Jan Roberg on Sun, 10th Mar 2013 11:18 am
  370. Hi Jim,
    You’ve got your signed 8332. I think that’s your weapon. If she’s revoked it, it would go into effect for the year after the revocation though. If that’s the case, you may need to take her to court–but wait until you hear from the IRS. I’m guessing that you’ll win this–but you won’t know what’s going on until you get some confirmation from them.
    My gut says that you’re just being held up because she claimed your child and after they sort through things you’ll get your refund. (But that’s just my gut–I’m not in posession of all the facts.)

  371. Jan Roberg on Sun, 10th Mar 2013 11:22 am
  372. Hi Kenna,
    I can’t give you advice about going to court–you need an attorney for that. But–I’m guessing that your wife’s X does not have custody of the child–you do. Is that correct? If that’s the case, why does he claim her? Is he entitled to because of the divorce decree?
    If he’s got that, then you would have to go to court. But if he doesn’t have that, then why aren’t you claiming the child–if she lives with you and you support her?
    Even is he does have the decree–you and your wife are still entitled to EIC for the child if your income is low enough.

  373. Jan Roberg on Sun, 10th Mar 2013 11:29 am
  374. Hi Jodi,
    Your divorce decree has conditions so right off the bat, your ex needs you to sign the 8332 for the exemption. (But I’m guessing you never did–don’t worry about it, just saying.)

    Anyway, different states see it differently, and different judges see it differently. I’m not an attorney–and I’ve found nothing in the tax code to make sense out of what happens when your kid turns 18.

    Now, you know that you still qualify for head of household and EIC (if your income is low enough) right? Even if you give up the exemption.

    I think the best solution is to talk it out with your ex since he is still helping you. If you’re not talking, at least remind him that your son is 18 and the dependency exemption ends. Don’t blindside somebody who is sending you money.

    Bottom line–I think you would win this case if it’s contested. But your life will be easier if you work it out with the father first.

  375. Jan Roberg on Sun, 10th Mar 2013 11:40 am
  376. Hi Sunny,
    Let me get this straight.
    1. You and your ex are still married, but live apart.
    2. You have custody of 2 children. One child is his, one child is yours from a previous relationship.
    3. You recevie child support from the other father.
    4. You also receive court ordered child support from your husband who no longer lives with you.
    Do I have it all?

    You want to file jointly with the ex that you’re still married to even though you don’t live together and you have a court order for child support against him.

    If you filed separately, you would get no tax refund.

    From a purely tax point of view–there is no law keeping you from filing a joint tax return with you estranged husband.

    But–from a practical point of view–I’ve heard this story before and I know how it ends. You file jointly so that you get the big EIC refund. He’s promised to give you the EIC portion hasn’t he? Then what happens is he keeps the money and goes out and buys himself a car or maybe a diamond ring for his new girlfriend and you’re left with your name on a tax return about him with no money. And–if he’s done anything creepy or fraudulent–you’re liable too.

    So, you can file jointly–but you’d better beware. For one thing, the IRS will probably keep the refund to go towards the child support. But then the child support people will be looking at that paperwork and will be wondering why he’s paying child support when you two are living together.

    Are you receiving any welfare benefits? They might be asking about why you two are living together also and why you haven’t mentioned his income.

    So–I recommend that you sign the 8332 form and let him claim the exemption and child tax credit. Give up the EIC and keep the peace of mind. You’ll sleep better.

  377. Jan Roberg on Sun, 10th Mar 2013 4:34 pm
  378. Hi Chris,
    It sounds like you are not the custodial parent. Only the custodial parent may claim a tax credit for the daycare expense. Sorry.

  379. Emalie on Tue, 12th Mar 2013 3:40 pm
  380. So, I’m really curious about my situation. My divorce was final in January, so the ex and I filed “married jointly” for the 2012 tax year. Since he makes more money than I do, we agreed to let him claim the kids for a larger benefit. According to my decree, I get a certain amount from exemption for each of our kids. Or am I completely wrong? I’m not really sure how all of this works. But if my papers are correct, I am supposed to be getting x amount of money and he’s given me a small portion of it. When I asked for more, he told me no. Sooo, is this a case of contempt or am I not understanding something? The kids are with each of us 50/50. Any help would be appreciated. Thank you.

  381. Layla on Sun, 17th Mar 2013 6:01 pm
  382. So, my husband has a court ordered custody agreement that states that the four children he has with his ex wife reside primarily with him during the school year and visit her on weekends and for the 2 months during summer it is flip flopped. the agreement also says that she gets to claim 2 on taxes and he gets to claim to (only way she would sign it was if she got money and little to no visitation, what a mom). he is the sole provider for all four children. their medical and school records show this address as their home. and she doesn’t work. and neither does her new husband. what will happen if my husband who provides for the children and is the primary custody holder claims all four children on his taxes next year?

  383. Jo on Mon, 18th Mar 2013 4:41 pm
  384. Hi. My ex and I divorced in 2006 and had joint legal custody with alternate years claming our daughter as a dependent. In 2009, we were back in court for custody modification because my daughter was being abused. Long story short, I was given sole custody but he was still given visitation. The order was modified in 2010 but there was no mention about the exemption. I believe that I should now be able to claim her each year. I sent in a copy of the new order and talked with someone from the irs when he claimed her too. They agreed with me. I have never filed or signed anything for him but he is threatening me with lawyers. Any help?

  385. SLC on Mon, 18th Mar 2013 8:19 pm
  386. Hi Jan,
    Sorry ahead of time, this will be long :)
    My ex husband and i were divorced in 2006. The divorce decree (which has never been modified) states that I have the right to claim both children as a tax dependent or exemption. This year when doing our taxes, we were told we couldn’t file as normal because my ex had claimed the EIC on the children 1st and that there was a new law? She went ahead and claimed them for the CTC and she said we would have to do an amend on our taxes. I live in MD now since remarrying in 2010 due to my husband being in the Air Force. We travel home several times a year for visitations, Summer visitations from the end of the school year at the end of May until the start of school in the middle of August. I didn’t move the kids with me because we hadn’t modified the court order and I didn’t want to disrupt the kids schooling. So we travel home to Missouri SEVERAL times a year (1000 miles/way) to see them. We had them a total of 128 days in 2012 and the remainder of the days were split with my ex and his mom. The kids stay the night at his mothers house 3-5 times per week due to his job hours. But between the 3 of us, we have them the most. Who should get to claim the EIC?

  387. Karisa on Wed, 20th Mar 2013 9:50 am
  388. Our divorce was final in Dec 2010…we do not have any court order concerning child support or taxes credits and we have joint custody. I lived in the house and raised the kids till August of 2010 and filed for divorce in September of 2010. The boys are at my house all the time since the morjority of them can drive. I live a mile down the road but kept the address for the kids as his address because 3 of the 5 where in high school and didnt want to change schools even though we both live in the same town…school district lines. We had a verbal agreement that I would get to claim 2 kids on my 2010 tax return. I just got a letter in the mail from the IRS saying that someone claimed one of those 2 kids on their tax return. My ex. We both qualify for the credit….I know his AGI is way more than mine! Will I get in trouble? What will happen?

  389. Jan Roberg on Wed, 20th Mar 2013 8:55 pm
  390. Hi Emalie,
    Yes, something is wrong. For one thing–you said that you filed jointly–so you didn’t really let him claim the kids, you claimed them jointly. That’s my first “ah ha”.
    Now maybe he’s being perfectly legit–it’s quite possible. But then again, there is probably a reason that you’re divorcing him so maybe he’s not so great.
    I’m not an attorney so I can’t tell you if he’s in contempt or not. But it’s probably a good idea to have someone take a look at your tax papers just to “make sure.”
    If you get proper help, and he is “misbehaving” then you’ll know and you can come at him from a position of power instead of from wondering. Good luck.

  391. Leslie on Tue, 2nd Apr 2013 8:31 pm
  392. Ok, my divorce was final Dec 2011. There is a condition on the court docs for claiming the kids on his taxes. So, since it’s after 2009, conditions are ok to have and he doesn’t need an 8332 from me?

  393. Christina on Fri, 12th Apr 2013 10:50 pm
  394. Hi Jan. My divorce decree (from 10/2012- but wasn’t signed until 1/2013) stated if my ex was in arrears on child support, then he could not claim children. I printed out a screen shot from the child support office that showed he was still in arrears. I filed my taxes claiming children.
    Today in court, my ex asked judge if he could claim a child. I brought in a copy of child support pages (after speaking to child support officer). She said as of closing time on 12/31/12 ex was in arrears. Ex’s work deducted arrears from his check on 12/31/13, but it did not arrive in child support office until 1/2/13 (and into my hands until 1/7/13). Now judge says ex can claim 1 of the kids. I already filed- what do I do? Now ex is threatening me to ammend TONIGHT (which I go to a CPA bc I am so confused with taxes!). What can I claim? (my CPA did not use me as HOH).
    Also, I still need to refile 2012 taxes after he filed married filing together, though we were separated 3/2012 and falsified much info. H&R block filed wrong forms (it was after 4/15/12 and was an amended Married filing separately- IRS tax layer said it should have been married filing separately regular form). I am so confused! Plus IRS tax lawyer said I need to also send in fraudulent form with this bc ex did not claim lottery winnings (it was around $400), and double claimed property tax, and filed without my permission or knowledge (my lawyer had to heckle him just to give us a copy of filing). Needless to say I am broke, need the refund monies I can claim, and need help!!!!

  395. Christina on Fri, 12th Apr 2013 10:55 pm
  396. I also failed to add that as of 3/2013 ex is on unemployment and judge is giving him a ‘break’ on his child support. I pay 100% for childcare and everything that goes with raising young children. After J&D was signed in 1/2013 it put ex >$6000 in arrears d/t calculated child support not paid. I need a break. I can’t afford all my living expenses, day care costs, student loans. Any words of wisdom?

  397. cynthia on Mon, 22nd Apr 2013 6:51 pm
  398. i have a question me and my ex have court orders that he claims him on odd years and i claim him on even years so how can i know or check if he has claimed him when he wasnt suppose to and can my husband claim him when its my turn to claim him since he has been raising him since 1 year old now he is 7 and im a stay at home mom?

  399. Confused on Mon, 6th May 2013 10:10 pm
  400. I will try to make this brief… We were originally divorced in 2009, he was ordered to pay me $7200 (never saw a penny) and until that was paid in full, I had the right to claim both children. We recently went back to court (end of 2012) but I did not get the new order until after I filed my taxes.

    The new order states that the debt is forgiven and he is able to claim one child starting with the 2012 taxes. Like I said, my taxes were filed prior to recieving the new order but he is not demanding that I sign the 8332 but I do not feel that I should especially since he is in arrears (which I understand the IRS does not care about).

    So I guess my question is, do they care that the order was not recieved until after my taxes were filed? How can a judge require me to go back and change taxes already filed? And, should I amend my 2012 taxes and sign the 8332?
    Thank you.

  401. Jan Roberg on Sun, 26th May 2013 4:28 pm
  402. Hi Layla,
    Your husband has four childrend with his ex and all four children live primarily with him. His court order allows him to claim two and his ex claim two. You want to know what happens if he claims all four.

    Well–that’s a violation of his court order–so depending upon what state you’re in, he could have some problems. I’m not an attorney so I can’t comment on those types of problems–so let me talk about taxes.

    First, as it stands, by allowing his his ex to claim two of the children, he’s missing out on $2,000 worth of child tax credit and whatever the value of claiming the exemptions is worth to him.

    Since his ex and her husband have no income, there’s no child tax credit for them–so I’m guessing they must have some income, otherwise they wouldn’t bother to claim the kids.

    If the decree is after 2009, he would have to issue his ex an 8332 to allow his ex to claim the children. If he didn’t–the IRS wouldn’t have a problem with him, but he’d still potentially have to deal with the court and I’m guessing you don’t want that.

    If the ex really has no income for tax purposes, it might make senses for them to sit down and talk about “what’s best for the kids”. Now, from the tone of you post, I’m guessing she’s not the type to do what’s best for the children, but you never know, she may just surprise you.

  403. Jan Roberg on Sun, 26th May 2013 4:40 pm
  404. Hi Jo,
    Your ex no longer has custody and you went to the IRS because he claimed your daughter. You won. Now he’s threatening you with lawyers.
    Ahem, let me repeat this one important part: YOU WON already on the tax thing. He abused your daughter. YOU WON.
    So as far as the IRS is concerned–you win. You will always win with the IRS because you are the custodial parent.
    Now I’m not an attorney so I can’t give legal advice. You’ll want to make sure that you do have access to an attorney just in case the sleazeball decides to try to take you to court. But from an IRS tax standpoint, you’re okay to claim your own daughter on your tax return.

  405. Jan Roberg on Sun, 26th May 2013 4:46 pm
  406. Hi SLC,
    You and your husband have the kids for 128 days. You don’t get the EIC. Sorry. You did get the child tax credit–that’s right, because your divorce decree gives you the dependency exemptions.
    Now, your ex and his mother have the children more. Normally you would say that neither of them could claim the EIC, but you mentioned that the kids sleep at his mother’s house because of his job. The IRS makes an exception for people with night jobs–and so it would seem that the kids actually are with your ex for more days than with you.
    Even if they’re not, you still don’t have them for over 6 months so you don’t get the EIC. And keeping your ex from claiming it would keep the money away from the care and well being of your children, and I don’t think that’s what you want. Sorry.

  407. Jan Roberg on Sun, 26th May 2013 4:53 pm
  408. Hi Karisa,
    You were divorced in 2010. You moved out in September. You had an agreement that you would claim the boys but now you’ve gotten a letter from the IRS saying that your ex claimed one.

    First thing I would do would be to talk to the ex. I’m guessing that you should have claimed the boys for EIC and had him claim them for the dependency exemption, but that you two did it wrong.

    That said, if you’re fighting about how it should be–you’re going to be the loser because the boys address is at your ex’s house. That’s where you’ll lose the case. So my best advice is to work with your ex because it’s quite possible that the situation could very a win/win for both of you–if you work together.

  409. Karisa Fuller on Tue, 28th May 2013 9:28 am
  410. I will be the one to file the ammended tax return….we have worked some things out, but I recieved a letter from the IRS saying that I owe basically all the tax return that I recieved that year, they basically just cancelled out ALL my deductions. It is just like I am starting fresh I guess?? Will they even accept my ammended return?

    I am completely terrified!!!

  411. Duane on Fri, 5th Jul 2013 3:10 pm
  412. Hello, I would like to start by saying that you have a great q&a here. My question is this: my son is 5 years old and was born March 25th 2008. his mother and I knew it wouldn’t work between us the whole time she was pregnant but I was there anyways through all of the birthing classes and child CPR and everything. she told me since day one before he was even born that we would switch of claiming him on our taxes every other year. she let me claim in 2010 on my taxes but never since because she says she has him more than i do. we don’t have any sort of court order between the two of us and I get him every Tuesday night and every other weekend. I am always up on my child support and I’ve never been behind on any payments. she told me verbally back in 2008 that I would be able to claim him every other year but nothing was ever put into writing. what can I do I’m not a deadbeat dad and finances are tough even for me too. please help.

  413. Jan Roberg on Sun, 14th Jul 2013 3:27 pm
  414. Hi Duane,
    You have custody on Tuesdays and every other weekend–that’s it. And you pay child support. So, the only way you can ever claim your child on a tax return is if your ex signs the 8332 form to release the custody for tax purposes.
    Now, if she does this, you only get to claim the exemption, you will never, NEVER, be allowed to claim EIC.
    The reason I’m spelling that out so strongly is because I’m thinking you may be under the mistaken impression that if you were allowed to claim your child that you would get the EIC. That’s where the big money is on a tax return–but you will never have that. Just so that’s clear.
    But–if your ex releases the exemption, you could claim the child tax credit and the dependency exemption and she could keep the EIC. If she knew that, she might be more willing to release the exemption. It’s worth talking to her about.

  415. Jan Roberg on Sun, 14th Jul 2013 8:15 pm
  416. Hi Leslie,
    No, your ex absolutely must have an 8332 from you, conditions or not, because your decree is after 2009.

  417. Jan Roberg on Sun, 14th Jul 2013 8:25 pm
  418. Hi Christina,
    You need some help.

    1. You separated on 3/12 and you had custody of the children. That makes you head of household, even though you’re still married.

    2. Okay, so the judge let you ex claim one child–fine, let him have the one exemption. You still get to keep the child for EIC (if your income is low enough.) Your husband is still stuck with married filing separately for 2012. You, once again, are head of household.

    You will paper file the 2012 tax return. You will let the IRS know that he forged your signature and that you did not file jointly with him.

    This is going to be a pain in the behind, but you’re in the right. Remember that. Ask your CPA if he’s comfortable with this type of fight. (Some aren’t.) I sometimes help my CPA friend when he gets cases like these. Not all CPAs are comfortable with this type of tax law.

    The bottom line is–you’re in the right. Make sure you get everything you’re entitled to.

  419. Jan Roberg on Sun, 14th Jul 2013 8:29 pm
  420. Hi Cynthia,
    You will know your ex claimed your child when he shouldn’t have if your tax return gets rejected. If that happens, you will need to paper file your tax return.

    Your current husband may claim your child on his tax return because if he’s married to you, that makes him your child’s step father.

    Now–this is important–if you’re married, you should be filing married filing jointly or married filing separately. If your new husband files separately, there is no EIC. Thought you might want to know that.

  421. Jan Roberg on Sun, 14th Jul 2013 8:32 pm
  422. Hi Confused,
    Since your ex is not demanding that you sign the 8332 for 2012, I’m not seeing a problem.

    But, if he does push it, remember he only gets the exemption and child tax credit, not head of household or EIC.

    That said, if you ex wants to fight, he can take you to court to make you sign the 8332. So really, it’s only if your ex is going to fight you on this that you need to worry. The IRS will not look into this unless you ex pushes it.

  423. Jan Roberg on Sun, 14th Jul 2013 8:35 pm
  424. Hi Karisa,
    If the IRS already adjusted your return (and if they are right) then don’t bother filing the amended return, just pay the money.

    If, on the other hand, you have your amended return showing a different amount that you owe–then go ahead and file the amended. Anything to say a little money will be worth it.

  425. Juan on Wed, 14th Aug 2013 3:09 pm
  426. My divorce finalized in 2007. I was given 51 percent custody and mom was given 49 percent. I believe it was for tax purposes. I get to claim head of household and my son every year. Now in 2013 mom is taking me back to court and asking to modify child support and on top of that wants to claim our son. She states because im married now and have anothee child. My exceptions are 4 and hers are 2.
    I was told that it was in my best interest to let her claim him because my support would be less if she has him as an exception.
    I have also read that if ww share equal custody then the person with the higher adjusted gross income gets to claim the.child.
    Any insight that might help, I go to mediation tomorrow.

  427. Jan Roberg on Thu, 15th Aug 2013 9:59 pm
  428. Hi Juan,
    I’m sorry, I missed answering this before you go to mediation. Here’s a few things you should know though:

    1. The IRS doesn’t give a flying hoot about who has custody in the divorce documents. All the IRS cares about is who is the custodial parent in reality. Where does your child really live.

    If you let your ex claim the exemption, you’ll still get to keep your married filing status (which is a good tax bracket). If you have custody you may still claim your son for the Earned Income Tax Credit if your income is low enough. If your income is too high for EIC, then it won’t matter if you give of the custody for tax purposes.

    Giving up an exemption is basically your tax bracket time $3900. If you’re in the 25% tax bracket, then you’re out $950 plus the $1000 child tax credit–basically costing you about $2000. At least you know what it will cost you.

  429. yessica on Mon, 7th Oct 2013 2:53 pm
  430. My child support order was effective in Dec. 2012. He has to pay $10 a week, claim our child in his taxes and joint-custody. he court told me when I started working I could modify the tax part. I work part-time paid in cash, I got married and file jointly with my husband (owns 17% of company) making 33,000 a year, plus work for a subcontractor but get paid in cash. My ex has only paid me for 17 weeks, but in money order, owns me 26 payments till this day. How can I get to change the order and get to claim my daughter as a dependent. He has claim her for four years, because I was not aggressive and say no. Does it hurt me to get paid in cash as well as my husband? My ex makes $24000 yearly and is also married with a step child. Does he wins in all?

  431. nicholle on Thu, 10th Oct 2013 3:21 pm
  432. Hi! I hoping you can give me some info…my child’sfather and I were never married…long story short after moving out of state he took me to court to get his child support reduced and get every other year taxts, starting 2010, he never requested the 8332 I didn’t question it well for 2012 I asked him again if he needed it he said no this tax person didn’t require it…what do I do? I think he is telling them she lived with him so he can get the credits, hr block told me to file an ammendment because since I have her ten months out of the year I should still get the child tax credit, I want to call the IRS but can’t because of the government shutdown

  433. Jan Roberg on Fri, 11th Oct 2013 7:47 pm
  434. Hi Yessica,
    I’m thinking that you and the ex might want to negotiate a little bit. So you two have joint custody. Does your daughter live with him half the time? Really? Here’s why I ask. The court may grant the dependency exemption, but if your daughter lives with you for more than half of the year–then you get to claim her for EIC. But–your income is probably too high for EIC–but your ex is in the sweet spot to claim it.

    I’m thinking that since your ex is paying child support–he doesn’t have your daughter for half of the year–I’m guessing that he has her for Wednesdays and every other weekend (or something like that.) That’s not half is it?

    So, technically, he can’t claim EIC. Now you two could cut a deal. You let him have her for half the year–really, and you claim the dependency exemption and let him claim EIC. See “Split Exemption”: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/

    If you could agree to do that, you’d both benefit taxwise.

    But let’s say you’re not willing to let him have your daughter for half the time, and he’s not cooperative. As far as the IRS is concerned, he may only claim the exemption if you sign the 8332 form releasing the exemption. If he doesn’t pay–you don’t sign.
    Physical custody is the only thing the IRS cares about. So–you could just claim her yourself. Sure, he can take you to court–but he’s at fault for not paying the child support.

    Now about you getting paid in cash–that’s fine as long as you’re claiming it properly on your tax return.

    I can’t advise you about how to change the court order, I’m not an attorney. I can only help with taxes.

    Good luck.

  435. Jan Roberg on Fri, 11th Oct 2013 8:14 pm
  436. Hi Nicholle,
    So your ex gets the exemption every other year. That’s okay. He says he doesn’t need the 8332, hmmmm. You may be right–but did you file? You should still claim your daughter for EIC and head of household filing status.
    Because he gets to claim the exemption–he gets the child tax credit. But you still keep the EIC (that’s usually better anyway.) It’s called splitting an exemption. This is how you do it: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

    That’s probably what your H&R Block person meant.

  437. Charlene on Wed, 23rd Oct 2013 9:18 am
  438. Hi Jan,
    This question is concerning a Referee Recommendation. The referee “awarded” tax dependency exemption. It does not state for state and/or federal taxes, nor does it state anyone is “ordered” to sign a Form 8332. Can the custodial parent continue to claim all children because no one has ordered him to sign the Form 8332. Also, can he claim all children if she does not ask for the Form 8332.
    Thanks!

  439. Jan Roberg on Wed, 23rd Oct 2013 8:28 pm
  440. Hi Charlene,
    Hmmmmmm. Good question. I would say that the referee would be in the same category as the court. Even though he wasn’t ordered to sign the 8332, he should readily do it when asked.
    The taxpayer did agree to the referee’s decision so he should not claim the children for the exemption, just for the head of household status and the EIC if he qualifies.
    Now, if the mother is choosing not to claim the exemptions–then of course the father (custodial parent) should claim everything. But he shouldn’t assume that he can just because she didn’t ask him for the 8332.

  441. dadneedshelp on Tue, 5th Nov 2013 11:10 am
  442. Thank you for dedicating your time to this blog! I hope I’m right in what I have done, but if not I will take it like a man.

    My ex-spouse and were divorced in 2002. Our separation agreement spelled out who would take the child tax credit that year and then alternate there after. I would get even number years and she would get odd numbers. We continued alternating until 2012 when my electronically filed returned was kicked back because someone else was claiming my child. We had never used form 8332 form and our relationship had soured recently so I knew she would not amend her tax return or sign 8332. So I followed the IRS rules for pre-2009 agreements and attached a coversheet explaining the situation with my ex-spouse’s SSN. I also attached the pages from our agreement that showed the alternating years and our signatures. I received the tax credit when my return was processed.

    Now, this week my ex-spouse and I both received a letter from the IRS stating someone has claimed our child and that one of us will need to amend our tax return. My ex-spouse (who works for an attorney) says she can now claim every year because we modified our parenting agreement to where she has more overnights than I. No where in the agreement was the child tax credit changed or even mentioned.

    So she is not going to amend her taxes, we both will be audited, and she said she will sue me for her time spent with her CPA. Should I just amend my taxes and let her win or let the IRS make the final decision.

    Thank you so much!!

  443. Jan Roberg on Sat, 30th Nov 2013 8:49 pm
  444. Hi Dad,
    It seems to me that you’re solid on the child tax credit as that’s what your divorce decree states and it pre-dates 2009. You ex is also entitled to claim your child–as the custodial parent–but not the exemption– only the head of household and EIC (if she qualifies.)
    This is a little grey, I’m saying that the child tax credit is in the divorce decree and nothing has changed there. Your ex’s attorney is claiming that the change in the nights changes everything. You could very well be at the mercy of the IRS agent handling the case.
    Personally, I’d side with you if I were reviewing it. I also think that if you do lose, you’re case is strong enough that I’d appeal if they do side against you.
    What you two should be doing is the split exemption. Here’s a link about that: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/
    Maybe if your ex understood about that, she wouldn’t be arguing with you. (Maybe?)

  445. Christina on Wed, 4th Dec 2013 1:29 pm
  446. My divorce decree is from 2004. All it says as far as the exemption is “Dad will get the exemption.” It also says that either party has a right to buy the other’s exemption, or something like that! At any right, our child lives with me and I am the custodial parent. I have since learned about the form 8332, which I have never signed. I plan to claim our daughter this year, but I really don’t want to get into trouble. He’s claimed her for 10 years now. I’ve not claimed her once, and she lives with me!
    Thanks!
    Christina

  447. Jan Roberg on Sun, 8th Dec 2013 2:39 pm
  448. Hi Christina,
    I deleted your last name from your post. Here’s why: although I don’t think you meant it this way, what I’m seeing is, “I’m going to ignore my court order and claim my kid’s exemption anyway.”

    Like I said, I don’t think that’s what you meant. I think you meant that you didn’t realize that as the custodial parent–you could claim your child for head of household purposes and for EIC, but that you’d still have your ex claim her as per the rules in your court ordered divorce decree, right?

    Here’s a few things you need to know: 1. you don’t have to sign the 8332 for your ex to claim the exemption–your divorce decree is old enough that he doesn’t need it. All he needs is the decree.

    2. If you intend to claim your daughter for EIC and head of household purposes, make sure you let your ex know. He might not realize that he’s not entitled to the head of household or EIC designations and if he doesn’t release that part of the exemption on his tax return it could result in you both being audited.

    3. Since you’re going to be splitting the exemption, you should both read this post about how to do it: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

    4. If claiming your daughter for the head of household filing status and/or EIC makes a difference for you, you can go back and amend your prior year returns and claim it there too. You ex might not be happy, but it might not even hurt him–it’s worth discussing. You may go back for three years, so you’ll have until April 15, 2014 to go back as far as your 2010 tax return.

  449. Alexia on Thu, 9th Jan 2014 12:13 pm
  450. My husband is currently paying back pay on child support to his ex wife. My ? Is how do we file since he claims me and my two children? Don’t want my kids money going to her and he’s the only one working? We have made a tax return together before but the ex decided to say he wasn’t giving his kids money which he was but we don’t have proof…bummer…

  451. Jan Roberg on Fri, 10th Jan 2014 12:52 pm
  452. Hi Alexia,
    You want to do something called “innocent spouse relief”. Here’s a link that explains it: http://robergtaxsolutions.com/2011/03/injured-spouse-relief/

    This way, although any refund that is due just to your husband will go towards the back child support, the refund that is attributable to you and your children will go to you. It’s usually better to do that than to file separately–but you might want to run the return both ways to make sure. When you’re filling out the forms–you say the children are your dependents–even if they belong to both of you. Good luck.

  453. Morgan on Mon, 20th Jan 2014 6:43 pm
  454. My divorce papers state that my ex and myself alternate claiming our son every year, but it also states who ever claims our son can claim daycare expenses as well. I am the custodial parent and everything that I have read so far states he isn’t able to claim that child care, only the custodial parent. So I am curious do I go by the court papers or what the IRS says.

  455. Jan Roberg on Mon, 20th Jan 2014 8:30 pm
  456. Hi Morgan,
    You’ve got an excellent question. The IRS will only let the custodial parent claim the daycare credit. Quite frankly, that makes sense–as only the custodial parent needs daycare. So, I would claim the daycare credit. It’s probably easier to work it out with your ex than it is to go back to court.

    Remember, when your ex claims your child, you still get to keep the head of household designation and if you qualify for EIC, that’s yours too. The non-custodial parent only gets the exemption and child tax credit. Make sure you check out this blog post also: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

  457. AMBER on Sat, 25th Jan 2014 12:42 pm
  458. I was divorced in December of 2009. My ex filed a motion on Feb 26 2010 and it state he can claim oldest child for federal and state tax purposes. The judge granted it. I was not present nor did I agree to this motion it was a phone hearing with lawyers and judge.my question is for him to be able to claim child would I still have to sign the 8332 form? Since its after 2009 we were divorced and order was in 2010 from county court. I am the custodial parent and keep in mind he has not had visitation nor seen the children since 2010 only pay $97.00 a week in child support for two kids, no other form of support. I have claimed both children since then because I called irs and asked what to do and they said I am to claim irs is federal courts and the over rule county judgments in this matter and I meet all the requirements to claim both children. but I have received letter from irs saying I need to make sure someone is my dependent because obviously my ex is claiming one son also because of the motion from 2010.
    I am confused after reading all the answers and questions above about the form 8332 and court rulings of who can claim the kids on this matter. So am I ok with claiming both kids since its after 2009 when motion was granted for ex to claim son for federal and state tax purposes and I have never filed out the 8332 form form ex to claim our one child?

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  459. Jan Roberg on Sat, 25th Jan 2014 4:12 pm
  460. Hi Amber,
    As far as the IRS is concerned–you have custody and you can claim your kids. That said, there’s a court order saying that your ex can claim one of them. You win with the IRS, but that doesn’t prevent your ex from taking you back to court and forcing you to sign the 8332. But you’ll have to talk to a lawyer about the odds of that happening. Depending upon where you live, it may or may not happen.

    That said, you get $97 a week. That’s $5,044 a year. Not much, but the value of your son’s exemption is $1000 for the child tax credit and maybe a little more for the actual exemption. You still get to keep him for EIC purposes if you qualify for that. So, letting your ex claim your son is probably worth less than $2000. So, is it worth trading $5000 for $2000? I mean, if he has no contact whatsover, it seems to me his only thing he gets out of the kids is an exemption — if he doesn’t get the exemption, why pay the child support? Oh–you’ll take him to court if he doesn’t? But you’re the one violating the agreement? See where I’m going with this?

    So, yes you win with the IRS–but is it worth it?

  461. Lorie on Wed, 29th Jan 2014 6:44 pm
  462. Ok I have a question… divorce was final in Sept 2008. Court order says that the ex gets to claim my son every other year. I tried to fight it at the hearing bit the judge shot me down. I have been lettjng it go but the problem is that he hasn’t spent a single night at his dads in well over a year, his dads wife just got out of jail after about 6 months, he hasn’t paid child support in over two months, he has moved for the second time in about 6 months and he isn’t answering my tests. Can I claim my son without worrying about having to go to jail or my son being forced to go see them?

  463. Jan Roberg on Wed, 29th Jan 2014 8:25 pm
  464. Hi Lorie,
    I need to tell you that I’m not a lawyer. I can’t tell if if you’ll go to jail or if the judge will force your child to go see his dad.

    I can talk about taxes.

    Number 1: Even if your ex wins and gets to claim your son on his taxes–he only gets the exemption and the child tax credit. That’s what it means for him to get the exemption. You are still eligible for head of household filing status, the Earned Income Tax Credit, and the child care credit, if you qualify for any of those.

    Now, back to the divorce decree. Does it have any conditions? Does it say he has to pay child support in order to claim the exemption? If there are conditions, that gives you something to fight with–because if there are conditions, then he can’t use the divorce decree to file his tax return. That’s were you go into negotiations–”Ex-honey–if you pay your back child support, I’ll sign the 8332 form.” See what I mean?

    If your divorce decree has no conditions–then he’s going to get the exemption–which includes the $1000 child tax credit.

    But–here’s the thing. He owes back child support! Is there a collection order out on him? Because if so, then the IRS will levy his tax refund if he gets one and you’ll get that money will go to you. So make sure that the court knows he hasn’t been paying his child support.

  465. Lorie on Thu, 30th Jan 2014 12:03 pm
  466. Thanks for the info Jan! There are no conditions to his claiming my boy every other year listed in the court order. I could realistically take him to court for not upholding the order as it also states that he will see his son every Tuesday, Thursday and every other weekend and has only seen him 4 times in the last 2 years. My problem is my son is doing much better without seeing his dad and I don’t want to risk forced visitation. (My boy is emotional enough about all this and has heen dealinf with self esteem and anger issues for years.) His dad knows that I dont want that and he uses it against me/us. I am going to call the child support agency about his not paying for the last 2 months after Jan is officially over and he still hasn’t paid. I will ask about a collection order to get the money from his taxes. I tried to be nice about it and go to him to be civil. He has another kid with his new wife and she has 4 others, so they have plenty of exemptions, but he won’t give us anything. I know he would take me to court to force the issue if I claimed my boy and I cannot afford a lawyer to fight him. I fear for my son’s safety with them as she was in jail for trying to burn their house down and had child abuse restraining orders filed against her for her own kids. Guess I’ll just leave it be. I don’t want my son to suffer for a few hundred dollars. I know I can claim HOH and EIC. I will get what I can that way. Again… Thank you!!

  467. Jan Roberg on Thu, 30th Jan 2014 10:00 pm
  468. Hi Lorie,
    I wish I had better help for you. It sounds like you’re making the right decision for your family. Good luck.

  469. Bradley on Fri, 31st Jan 2014 10:40 pm
  470. Hello, I have a question. My daughter is 13 and I had to take my ex to court for joint physical custody in 2011. We previously had joint custody, but apparently that only meant joint legal custody. We have her an equal amount of time and alternate holidays and the worksheet for child support drawn up by her attorney gives me 183 days per year and gives my ex 182. We are ordered to alternate dependency filing years. I get even years and she gets odd years. The court order says nothing about who claims earned income tax credit for her. It just so happens that the visitation fell in my favor for 2013. I had her 190 overnights and she had her 175 overnights. It will fall in my favor again for 2014. This is due to the holidays that I received. Am I allowed to claim the EIC even though I am ordered to let her claim the dependency for my daughter? I have already submitted my return, but it has not been processed yet and my ex is mad because I claimed the EIC for her. She says I cant do that. I did not claim her as a dependent or take the child tax credit. What should I do and can she take me back to court to have the EIC factored into the decree.

  471. Jan Roberg on Sat, 1st Feb 2014 4:08 pm
  472. Hi Bradley,
    If I’m reading you correctly, you are in the right. You had more days so you get the EIC and head of household–your ex–because it’s an odd tax year, gets the dependency exemption.

    EIC is not part of the divorce decree, only the exemption is. I suspect the your decree was rewritten with 50/50 physical custody so that EIC would also be alternated–but you win on the days.

    I suspect your ex will try to fight you so document, document, document. Clearly, you’ve kept track, that’s the right thing to do. Just don’t be surprised if he’s fighting you on this. (But it sounds like you’re ready.)

  473. MJ on Sun, 2nd Feb 2014 1:08 pm
  474. Hello,
    So glad there are forums for these tax questions, thank you! I am divorced, as of June, 2009. My ex-husband and I have a 20 year old college student child. Our divorce agreement, as of 2009, as regards to filing tax returns states: The parties shall alternate claiming the minor child on their Federal and State tax returns. The parties may, however, agree to a different allocation of the exemption in order to maximize tax consequences on an annual basis. Our divorce agreement also states that we share equal responsibility to our child , sharing 50/50 financial responsibility. My ex-husband has never shared 50/50 for living, medical or college expenses for our son. My son lived with me full-time, when home from college, for all of the 2013 tax year. His father rented our son’s room in his apartment and now my son chooses to live with me full time. He, essentially, is not providing. Each year since the divorce I have provided the health insurance coverage for our child and all copays and medical expenses related without any contributions from my ex. In short, my ex-husband has never complied with the divorce agreement in terms of 50/50 support or anywhere near it.. He is now unemployed, again, and is not contributing to our son’s expenses at all. 2013 would be the tax year that my ex-husband could claim our son on his tax return, according to the divorce agreement. My question is, can I legally claim our son as a dependent for 2013 because I am legally the ‘custodial parent’ as far as the IRS is concerned? I would attempt to ask my ex if he would agree to my claiming our son for the 2013 tax year but he is most likely going to deny it if given the chance. Ethically and morally it is inappropriate for him to claim our son as a dependent at all. This may be a question for my attorney but I thought I would ask you to begin. Many thanks for your reply!

  475. Jan Roberg on Sun, 2nd Feb 2014 3:14 pm
  476. Hi MJ,
    As far as the IRS is concerned, you are the custodial parent and you have the right to claim your son and if your ex-husband wants to claim him, he’ll need a form 8332 signed by you. I say go for it.

  477. Carmen on Fri, 7th Feb 2014 10:41 am
  478. Please help! My support order states “Mother and father shall each claim one child for tax purposes.” I claimed both, because the IRS rules stated that I was entitled. I have received an order from the court to sign the form 8332 within 10 days. I have already filed and received my refund. What are my options?

  479. Jan Roberg on Sun, 9th Feb 2014 2:50 pm
  480. Hi Carmen,
    You’ve got a court order to sign the 8332. You sign the 8332. That only releases the exemption and child tax credit, not the EIC.
    Amend your taxes and pay back any money you weren’t entitled to. Here’s a link about splitting an exemption: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

  481. MJ on Mon, 10th Feb 2014 6:17 pm
  482. Hi Jan,
    Well seeing Carmen’s post and situation makes me concerned about claiming my son for a tax year that technically my ex-husband is entitled to per our divorce agreement. Even though my son did live with me full time for the 2013 tax year and I contributed significantly more income to his expenses. Your recommendation was to ‘go for it’ (posted on Feb 2, 2014 above) and that I’m the custodial parent in this situation. If my ex also claims our son In this situation will it only be my ex who would be asked to sign a form 8332?

    I also have one more question, on my son’s 1098T from his university box 1 states that he was billed less tuition expenses than scholarships and grants received in box 5. He was actually billed more in 2013 in tuition and related expenses than scholarships and grants received. I called the university accounts office and they tried to explain that this is often the case, that the tuition billed is less than scholarships and grants, due to when the scholarships and grants ‘go through’. This is confusing and also prevents me from being eligible for any education credits (a $3000 difference in my refund). In actuality he was billed over 10K more than scholarships and grants received in 2013 and the billing statements show that. My question is: do I report the 1098T tuition billed amount or the actual amount of tuition billed in the 2013 year? Are there rules to override the 1098T for this reason? Otherwise we miss out on the education credit for an entire year which seems unfair. Thanks for your reply!

  483. Jan Roberg on Tue, 11th Feb 2014 8:56 pm
  484. Hi MJ,
    Since you are the custodial parent, you are able to claim your son for the head of household filing status and for the Earned Income Tax Credit if you income allows that. Now if your ex is going to claim your son for the exemption–then you sign the 8332 to allow that. Here’s a link to a post about how to claim one child on two returns: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

    About the 1098T–first, if you want to claim education tax credits, then you MUST claim the exemption for your son. So splitting the exemption with your husband is not a good idea if you can get the American Opportunity Credit.

    Now–sorting through the tuition billed. Yes you can do it. I’ve done if for clients before. You’ll want to document everything. You may need to go back and amend last year’s return to show exactly what was paid then too–because you’re dealing with payments crossing over in various years.

    What I do is use the worksheet function in the software–and I list out everything. Everything! If you don’t have that worksheet capability, I suggest you make an excel spreadsheet and line item all the payments and bills for the time period. Then remember to attirubute those scholarship payments that aren’t to be used for 2013 on the 2014 tax return. You won’t be able to submit the excel spreadsheet with your tax return, but you’ll have it as back up in case you do get a letter from the IRS.

  485. MJ on Wed, 12th Feb 2014 7:06 am
  486. Jan,
    Thank you for all the clarifying information and advice!

  487. Sheila M on Sun, 23rd Feb 2014 7:56 pm
  488. Me husbands exwife claimed his kids even though they were only there for 2 months. She knew that she could not do this. Also, she has been on probation for fraud before in another matter and is currently on probation for assault. She has been claiming the kids also for food stamps even though they lived with us. Will the justice system do anything to her now? She is also in here in the USA in a visa. I know we will still get our income tax return because we have all of the documentation to prove we supported them for the 10 months they were here. The orders for them to live with her are temporary orders which we will be going back to court to bring them back over here next month which means they lived there but not long enough for her to claim them. Could she do this again?

  489. Jan Roberg on Thu, 27th Feb 2014 5:19 am
  490. Hi Sheila,
    I’m sorry but the ex might try this again. The IRS has been really working on this and trying to stop it. I have to give them credit for that. But that doesn’t necessarily mean that the ex won’t try it again. I have another post http://robergtaxsolutions.com/2011/01/my-ex-claimed-my-kid-now-what-do-i-do/
    where several people have complained about that happening year after year.

    You know you’re in the right, you know you will win. But I think you should never count on your refund being on time, at least not until the IRS figures out a way to prevent repeat offenders from claiming kids they shouldn’t claim. They are working on it, and they are getting better. But it’s not perfect yet. Sorry.

  491. MJ on Thu, 27th Feb 2014 8:14 pm
  492. Hi Jan,
    MJ again from previous post Feb 2 and 10 above. Well I took your advice to ‘go for it’ and I claimed my son as an exemption on my 2013 tax return. According to the IRS I’m the custodial parent. My son lived with me for all of 2013 and I provided significantly more than 50% for his living and college expenses. Our divorce agreement, as I stated in detail on Feb. 2, 2014 above, states that we alternate tax years to claim our son. This would have been my ex husbands tax year to claim him for 2013 but he barely provided for him. Our divorce agreement , from 2009, also states that he provide 50/50 and he has never done so. I let my ex know that I was claiming our son this year and he responded stating that I could not do that and that he would claim our son and not sign a release form for me to do so. I don’t understand how he could claim him without lying on his return and saying that our son lived with him when he did not. I’ve already filed my return and I believe that I would be the custodial parent who would have to sign the 8332 to allow him to claim our son. I don’t want to have to do that. How does the IRS make a determination if he also claims our child? What happens next? Is it time to see my lawyer? Trying to avoid costly lawyer fees but I don’t want to get in trouble because of the divorce agreement. I do feel that I would win on all accounts because my ex has never complied with the other aspects of our divorce agreement to provide 50/50 for our child’s expenses. Thanks for your reply!

  493. Jan Roberg on Sun, 2nd Mar 2014 12:59 pm
  494. Hi MJ,
    You’re right. If your ex wants to claim your son, you’d have to sign the 8332 form–but you’re not going to do that.
    So what happens next?

    This year, it seems like the IRS has been holding onto the returns of divorced parents, waiting to see what claims come in. Usually, the parent that files first gets the refund, and then the other parent would have to paper file to complain. Right now for you its, wait and see.

    If you do get a notice from the IRS–you just prove to them that you are the custodial parent–which you can do.

    You will win with the IRS. If your ex takes you to court–well, you’ll need to talk to your lawyer, but it seems that your ex violated the divorce decree in the first place so what’s he suing for?

    If he takes you to court, you’ll need to contact your lawyer of course. That’s out of my area.

    As far as your dealings with the IRS are concerned–you’re on solid ground and do not need an attorney for them.

  495. MJ on Sun, 2nd Mar 2014 1:48 pm
  496. Thanks for all the info Jan! Seeing my attorney tomorrow just to review all and be prepared. I really appreciate you taking the time to answer these tax questions.

  497. Valentine on Wed, 5th Mar 2014 6:32 am
  498. I have had sole custody of my child for the past 6 years, My ex was supposed to go threw classes and a re introduction process in 2008 when the divorce and custody order was finalized. The judge which has now been disbarred for other reasons ordered that Each year the tax credit will alternate. There was nothing else placed on there about it. The first two years I was told by the IRS that the judge does not supersede the federal law and the federal law states which ever parent has the child the most out of the year is the one that receives the tax credit unless the custodial parent signs the 8332 which I haven’t I was told to paper file this year after a e file rejection occurred. My ex filed for her but hasn’t been around her or even called in over 6 years. What is the next step? I understand my rights but I want this man prosecuted for fraud being this isn’t the first time he’s done something like this. He still had some of my personal information from when we where married and he ordered under my name with his new wife over 6000.00 in pornographic and children’s magazines which I had to pay because I couldn’t afford another lawyer. I have mailed my paper taxes in what is next what can I do.

  499. Jan Roberg on Sun, 9th Mar 2014 8:45 pm
  500. Hi Valentine,
    Paper filing is the proper next step. You’re doing the right thing and you will win the case, but it will take time and yes, it’s insanely annoying.

    The Treasury Agents with badges probably will not go after your ex–they don’t get involved unless the fraud is over $40,000–and the refund your husband got is less than $40,000.

    So, in the mean time, you need to keep your chin up. Keep fighting. Keep doing the right thing. I suspect that you’ll probably have to deal with this issue again and again.

    Make sure that you budget your money carefully. Don’t count on getting your refunds in a timely manner. You will get them eventually–you just won’t get them on time.

  501. Shelly on Tue, 11th Mar 2014 3:02 pm
  502. I was divorced in Minnesota in 2011. We have 2 children, 13 and 11. I have full physical custody, and the divorce decree states that we each get one child as an exemption as long as ex is up to date on child support. He has always had arrears because he doesn’t pay medical reimbursements for our daughter with diabetes in a timely manner. Late in December 2013, he paid his arrearages so that he could claim deduction (he is already behind again, nice guy!) . My children go to a private school which I do get some aid from that school but I pay the remainder of the tuition, My ex refuses to help with it. Anyway, he has now called the school to find out what 1/2 of the tuition paid was so he can claim it on the MN state return. He hasn’t paid anything, but wants to take the deduction. He is also I believe going to file head of household and take the EIC for the child he gets to take as a dependent this year. The children live way more than 50% with me. So from what I have read is that all of these things, the tuition, the head of household and the EIC are against the law. He has not asked me to sign the form 8332. I already filed and only claimed the one that I am allowed, and have more income than the limit on the EIC. I guess my question is how will the IRS and the State catch this? Can he file like this? I guess it just bothers me that he is trying to get credits for tuition, etc that I pay when he refuses to pay anything and plays the games with child support like he does.

  503. Jan Roberg on Sun, 23rd Mar 2014 7:55 pm
  504. Hi Shelly,
    I understand how you feel. So what I’m going to tell you isn’t necessarily nice, but it’s perfectly legal and legitimate. It won’t help your taxes at all, but it might make you feel a little better.

    This advice is for anybody in your situation:

    Claim your one daughter for the exemption, like you always do.

    Claim the daughter that you don’t get to claim the exemption for as “claiming for head of household”.

    It does you no good whatsoever, but it will mess up your ex’s ability to claim EIC and head of household.

    Different software programs will have different ways of doing this. Mine has you claim that the child lives with you but you’re not claiming the exemption.

    But that’s basically what you need to do.

    Another thing–do send you ex the 8332. Back when I used to work at the big box store, men would briing those forms in thinking that was their ticket to claiming EIC, not realizing that the 8332 guaranteed that they couldn’t claim EIC. It’s worth a shot anyway.

  505. Tony on Thu, 3rd Apr 2014 8:16 pm
  506. Hello, Well I am not married to my we did have a child together. We went to court and written up a good parenting plan for our daughter. Well everything was going good untill I filed and my daughter has been claimed by another party. I know it was her and I called the IRS and they told me to send in my taxes though mail. I’m still waiting for them to reply. Well I have custody of my daughter 5 days out of the week and it’s been set in stone for quite a while. I want to file a contempt paper and take her to court and even though I know she will say she didnt claim her ( shes a huge liar ) she thinks she will get away with it. I have proof of over night stays and proof of the court order saying I get to claim her this year. My question to you is what is going to happen. I mean I wish i wasnt so frusterated about this as I am going to put her money in her bank account I have for her as her mom will spend it on herself knowing she sees our daughter 2 times a week. :(

  507. CS on Fri, 4th Apr 2014 10:16 pm
  508. I was divorced in Illinois in 2010. My son is now a Junior in college. There is nothing in my divorce agreement about tax exemptions and my son lives with me when he is not away at school and I pay for 100% of his needs during that time.

    My ex pays 40% of tuition, room and board and books, my son and I split the rest of the tuition, room, board and books and I pay 100% of everything else he needs to exist – transportation to and from school, cell phone, personal hygiene, medications, clothing, etc.

    I have claimed him on my taxes every year – I always file at the end of January so that I can get his FAFSA in as early as possible. This year my ex informed me, after my taxes were already complete, that he decided that he was going to claim the American Opportunity Tax Credit for 2013 and 2014 and that he expected me to sign a form 8332. I told him that based on tax law he wasn’t entitled and that I had already completed my taxes and therefore would not be signing it. He has decided to take me to family court to ask a judge to force me to sign this form.

    I know that according to tax law my ex is not entitled to this deduction. I noticed that you mentioned in earlier posts that once a child is emancipated a custodial parent is actually no longer a custodial parent and therefore does not have the right to sign over the tax exemption. Would that be considered the situation I am in here?

    My question is what do I need to bring with me to family court to prove that my ex is not entitled to this exemption?

    Thanks

  509. Jan Roberg on Mon, 26th May 2014 4:47 pm
  510. Hi Tony,
    It sounds like you are truly the custodial parent and that you can prove it. Yes, it’s frustrating, but you are going to have to mail in your tax return and there will most likely be more paperwork.

    It is possible that your ex is innocent and did not claim your daughter. (Highly unlikely, but still possible.) The IRS won’t ever tell you though.

    Here’s basically what will happen: you file the paper return. The IRS will send you both letters saying, “hey, you claimed a child that someone else claimed, are you sure you wanted to do that?”

    Then they’ll ask you for proof that your child lives with you. Which you will send.

    Then you’ll win your case. Your ex will get a nasty letter saying that she owes the IRS the money back with penalties and interest.

    Then next year she’ll probably try to do it again, but hopefully will get caught before they give her any money. (I say hopefully–the IRS is getting better at catching folks, but it ain’t perfect.)

  511. Jan Roberg on Mon, 26th May 2014 4:58 pm
  512. Hi CS,
    I’m sorry but I’m not an attorney so I can’t give you legal advice. You’ll need to talk with your attorney. Sorry.

  513. Christopher on Mon, 2nd Jun 2014 8:58 pm
  514. I have a court order specifically stating I get to file a tax exemption regarding one of my children…yet the IRS just notified me that I must have her sign the 8332?!? The courts gave me permission so why do I still have to go through her? The IRS is usurping governing laws. The only thing that should be needed is a copy of the court order and that’s it!! Not everyone gets along well enough to ask for a casual signature! What do they think they’re doing making everyone jump through all these hoops? That’s what an audit is all about. Let people file, process them with the information given then audit them if they suspect fraud. They have no right to play magistrate! I am enraged! Can nothing be done to stop this gustapo of parental rights?!?!

  515. JoAnna on Fri, 4th Jul 2014 3:36 pm
  516. I’m not even sure where to start but I will do my best to be as clear as possible. Concerning form 8332/divorce papers: There is nothing in my paperwork that makes any reference to any IRS dependent stipulations, meaning who gets to do what or when as far as taxes are concerned.

    This part I remember very well because I would be darned if I was going to support our children 24/365 while he got all the tax breaks/benefits, whatever all that would someday include. So I’m thinking that pretty much nixes the “Divorce Papers” option.

    Now about that form 8332… Never heard of it before yesterday, let alone saw and signed one of them in the last 9 years! Although, I did look it up and saw one online a bit earlier today. And I see where not only is my signature, as the custodial parent, required, but also my SSN, (obviously).

    Why haven’t I known about this before you might be wondering? Well, I am a disabled vet and have raised my three children, and my granddaughter on my service related disability compensation check each month. It’s not much believe me but with that and a little child-support for three of the children… we barely eked by month after month. However, I myself have had no taxable income, “Nothing in, Nothing out” as they say. Since I wasn’t required to file, I did not.

    No doubt that was my own undoing, or perhaps my unwittingly paving the road for my ex-husband to cash in on my ignorance. My ex-husband makes extremely good money every month, week after week, he makes more in that one week than I get all month. Nevertheless, I cannot begrudge him his earnings, I do however, have to wonder how in the world he keeps getting away with claiming the kids and getting these sizable tax returns? I mean seeing how I never signed away my rights, because that’s pretty much what it amounts to, and yet… seems like someone *must-have-had to sign it* ~

    I don’t even care about any refund he may have gotten, I do however care if my name and SSN were used without my consent! At the very least, that would constitute Identity theft “IF” that were the case, not to mention all the other not so pleasant possibilities. We all might consider what we might do in a case such as this if it were a stranger, ex-husbands or wives, etc… cannot expect to be above the law if they are willing to stoop so low.

    The dilemma. How to get copies of those forms, if in fact they do exist with my signature on them… Can I just call the IRS and ask them? Thinking that, technically speaking, I probably don’t have a right to copies of his tax papers, but then again… if a document exists with my signature on it, then do I not have a right to a copy of that?

  517. Jan Roberg on Sat, 5th Jul 2014 6:52 am
  518. Hi JoAnna,
    First off, thank you for your service to our country. Now for the tax issues.

    I would bet you $100 that your ex did not file a 8332 form. You never signed one and he’s probably not stupid enough to commit fraud.

    People get away with filing tax returns and claiming kids without 8332 forms all the time. Especially the biggest cheats because the 8332 only allows him to claim the exemption, not the other benefits of EIC or head of household filing status.

    You said he makes a lot of money so claiming EIC is probably not what he’s doing. But that would be the biggest benefit to “forgetting” about the 8332 form.

    Anyway, what can you do? You can start filing your own tax return. I realize that you don’t have any taxable income, but you’re just putting it out there that the kids are not with him. Here’s a link about how to do it: http://robergtaxsolutions.com/2013/12/how-to-file-a-tax-return-when-you-have-no-income-and-why-you-might-want-to/

    Basically, you put yourself down as single, claim the kids as dependents, and put $1 on line 21. It gets the IRS to look into things. And since the children really do live with you–well you’re ok. Plus, you haven’t asked for a refund or anything anyway.

    Now another option–for what it’s worth, is to tell you ex that you have been advised to file a tax return and that you are claiming the children. You just want to give him a heads up in case he has been claiming them illegally. Perhaps you two could work out a deal where he does pay you some child support for the privilege of claiming the kids on the tax return. It’s a thought. Good luck.

  519. Jan Roberg on Sun, 6th Jul 2014 6:17 pm
  520. Hi Christopher,
    I hear you. I can’t help you, but I hear you. You’re proof positive that lawyers need to make sure that spouses sign the 8332 forms right along with the actual divorce paperwork so that parents that are allowed to claim exemptions actually get to take them. Of course, once that starts happening, they’ll change the rules again anyway. (Sorry for the sarcasm, but it’s kinda true.)

  521. Kristine on Tue, 8th Jul 2014 2:14 pm
  522. Hi there. I was divorced in Wa State in 2012. (Separated since 2003) we have 2 children together. Father was given the tax credit in court because I am a homemaker. He is currently employed, however, he owes over 12,000 in back support. He will not discuss anything with me reguarding taxes. Our two children reside with me, all year other than 3 weekends per month and yes, i have court papers to prove. His close friend told me that he is having his girlfriend claim our two children so that child support does not hold any of the tax money and it ultimately ends up in his hands as his girlfriend gives it to him. I understand this is a bizarre situation but he has done this for the past 3 years so I am wondering if you might have any advice as to where I could start to put an end to this?

  523. Jan Roberg on Sun, 13th Jul 2014 8:18 am
  524. Hi Kristine,
    I know exactly what to do!

    You ex was only given the “exemption” not the right to claim them as head of household or anything like that.

    You need to claim your children on your tax return as head of household. (Or if you’re married, for EIC purposes.) Don’t qualify for either? Put them on your return anyway.

    It’s 100% against the law for his girlfriend to claim your children in any way, shape or form. So, there you go.

    Now, let’s say you have no income. Fine, do the return, put $1 on line 21 of other income (otherwise the software won’t make your return go) and file. That’s just telling the IRS that you’ve got kids to claim. It sends “notice” that somethings fishy with those social security numbers.

    If you’re already married and there’s no “head of household” to claim, you can still get the audit functions rolling by–okay and this is a pain and kind of nasty but–here goes–you file an amended return claiming the kids as dependents. You’ll lose the case, because of the court order, but it will start the audit and once she’s audited–it will prove to the IRS that she can’t claim the kids. Ouch!

    I know that’s kind of nasty, but I’m mad that this woman that I don’t even know is illegally taking my (by my I mean Jan Roberg’s, my) tax dollars illegally. She’s ticking me off. I’m okay with you getting the deduction, the kids are yours. I’m even okay with your ex getting the deduction–it’s his legal right. But they’re cheating the system and that frosts my cookies.

    You could report her for fraud: http://robergtaxsolutions.com/2010/11/how-to-report-tax-fraud/

    But I find that claiming the kids on your own return works faster and more likely to illicit a response from the IRS. Good luck with whatever you choose to do.

  525. JoAnna on Sun, 13th Jul 2014 7:55 pm
  526. First of all, thank you ever so much for the information Jan. As for that bet, well… after some prodding, he so much as admitted that for the first 2 years he did indeed file an 8332, but that, from that point forward, he never again sent one in again. Really? I guess he thinks I’m about as dumb as a rock, (and I was til I found you!!) Of course he wouldn’t have had to send in anymore forms if he just gave himself the privilege of x# of years rather than the just yearly option. Or, maybe, if we just acted like the divorce never happened, we could, perhaps get away with all the IRS goodies. (apologies for the sarcasm)

    And I thought as much, since he forged my name to several checks (made out to himself, by the way) drawn against my sole checking account while we were still married, so my cookies were already frosted! But “THIS” is a whole different matter altogether. Not only does this have to stop, but something needs to be done about what has already occurred, and I am not interested in waiting do get the ball rolling until next year when I * Will* be filing my own return. Where do I start and should I get a lawyer?

  527. Paula on Tue, 29th Jul 2014 11:40 pm
  528. I am going thru modification at this time. I have exactly half [week on week off] custody for daughter in college. She is my depended at this time. The judge is looking at changing this if he pays all out of pocket expenses. I brought up the form 8332 to my lawyer. He also wants her child support to go to her directly and the EIC would still allow me to help her some as she can not drive and I am her driver on most accusations. My lawyer is interested if I can continue to get the EIC & head of household and how that works with the lifetime learning,and education credit ect. Will he loose anything from me doing it this way? will I? He makes 75,000+ a year while I make almost 8,000 [4715 AGI], I do not know if I get the dependent deduction it does say her name and a 1 in the box [I don't see where it is or should be on tax form] other than that. It seems to show up to state form. I paid all tuition expenses last year but do not see it on form as a credit ether. Can I stipulate in modification that form 8332 be used until daughter is out of school or 24 which ever comes first. we were separated in 05 and divorced in 07, I have had her a dependent all the time since 05.
    I also have a son that is involved in the Modification and word was judge would give him to me as dependent, is there any reason I should or should not do the 8332 with him also tax wise?

  529. Paula on Wed, 30th Jul 2014 12:34 pm
  530. update to above question, appears The judge would have to give me both as dependents and I would have to sign the form so he could have the dependent exemption for 1, the daughter, I would have the EIC/head of household. My son would still be my dependent, not signing form for him? If there are 2 children involved will this still work? or is form for all children.

  531. Laurie on Sat, 9th Aug 2014 12:36 pm
  532. Hi, I have been divorced since 2010 in Texas. My son turned 18 on Aug. 17, 2013 and went off to college that same month. My ex wants to claim him, and education deductions this year. I have always claimed, and there is nothing in my decree that states anything about taxes. Do I have to let him file? I don’t want to be audited if I claim as well. Neither of us pay our son’s tuition…he receives financial aid.

    Thank you, Laurie

  533. Laurie on Sat, 9th Aug 2014 12:39 pm
  534. I was also custodial parent.

  535. Jan Roberg on Sun, 10th Aug 2014 4:21 pm
  536. Hi Paula,
    okay, given your income, you want to keep the head of household, EIC section. Now, if you give your ex the dependency exemption, then he gets the exemption and that gives him the American Opportunity Tax Credit for your child’s college education. So—-if he’s paying the tuition, I’m okay with that. If he’s not paying the tuition, then I’m not so sure.

    So, if you sign the 8332, then he’ll get the college tax credit. So, what do you get if you let that happen?

  537. Jan Roberg on Sun, 10th Aug 2014 4:28 pm
  538. Hi Joanna,
    you could file back taxes. It’s a little nasty but I think you’re tough enough. (You’re a vet, you should be tough enough.)

    I think getting a lawyer on the identity theft would cost you lots of money but it wouldn’t get you anything. You can ask, maybe I’m wrong there, but I haven’t seen anybody win anything on ID theft yet.

    Or maybe you just tell him you’re going to file back taxes and see what kind of deal he’s willing to make if you don’t?

  539. Jan Roberg on Sun, 10th Aug 2014 4:30 pm
  540. @ Paula,
    you can sign the form for any children you want, 1 or 2 or none.

    Maybe you should sign the 8332 for your son who is not in college and not sign for your daughter–that would be my recommendation. That keeps the college tax credits with you. Although they might be worth more to your ex because of your low income. Just a thought.

  541. Jan Roberg on Sun, 10th Aug 2014 4:35 pm
  542. Gee Laurie,
    You were the custodial parent and now your husband wants to claim your son since there’s a 2500 tax credit on him?

    You say you didn’t pay any tuition, so maybe there is no tax credit, but if your son had a loan and it wasn’t all scholarship, then there’s the potential for that $2500 tax credit.

    So before you give up the exemption–I’d take a good look at the 1098T to see what it says.

    Now, it’s possible that your son got a really good scholarship and actually received more money than his tuition, in which case he’d have to pay tax on that. Then, I’d let your ex take it. “Go for it, Honey! Just make sure you pay Junior’s taxes too, okay?”

    Sorry, I’m kind of mean.

    If you do allow your ex to claim your son, and take the education tax credit, you still are the custodial parent and you keep your rights to claiming head of household tax status and any EIC if your income qualifies.

  543. Laurie on Thu, 14th Aug 2014 6:11 pm
  544. Hi Jan,

    Thank you for responding. My question however is…….Because I was custodial parent, and lets just say I claimed my son and then my ex also did……who would be penalized? There is a tax credit on his tuition…. he has more in loans, then in scholarship. Thank you

  545. savana on Mon, 18th Aug 2014 9:54 pm
  546. I have a few questions.. I’m asking on behalf of my husband ( I do the taxes). He was married before me and they had a child. In the divorce decree it states ” the parties shall alternate the exemption each year. The husband shall be permitted to claim the child in odd numbered years; the wife shall be permitted to claim the child in even numbered years for so long as she is current on her child support. ( she doesn’t pay child support. She has to keep up with a life insurance policy). The husband shall execute an IRS Form 8332 each year the wife is permitted to claim the child, granting to the wife the exemption rights for the child.” She has not seen him in over a year and a half. How is she allowed to claim him when he hasn’t been with her at all. My husband’s tax refund is mainly from claiming his son. Please help me understand. I’ve never heard of EIC or the 8332 Form other than in his divorce papers.

  547. Jan Roberg on Sun, 24th Aug 2014 8:40 am
  548. Hi Savana,
    You you have never heard of EIC, then it’s probably because your income is too high for it to be relevant That’s a good thing.
    Only someone with divorce papers would ever have to deal with form 8332, so that’s why you only see it there.

    If she is not required to pay child support, but pay the life insurance policy–I guess that’s it. She’s done what she’s supposed to do. If she hasn’t violated the divorce decree, then you let her claim the exemption. That’s the price you pay for the life insurance I guess.

  549. missing something on Tue, 23rd Sep 2014 11:39 am
  550. Hi Jan,

    Thank you so much for all of the information provided here. I wasn’t able to get my question answered so here goes.

    My divorce was finalized in March 2010. We share joint physical and legal custody with a 2/2/3 split, shared holidays, etc. He designates their residence – I thought this was for school purposes and determining the neighboring counties he can move to. There is nothing in the decree related to tax exemption. We mediated out of court and I agreed to pay an amount of child support and carry the insurance – based on my income. He has claimed the kids for the past 3 years. He said because he designates the residence he has the right to??? I am not sure of this. I have filed single and had to pay taxes for the past 3 years. I did not know I could claim any of it. However last year I read and it states after 2010 divorce decree is not even considered, it is only who has the kids the most days of the year. This year 2014 I will have the kids most days of the year, can I claim my kids? or does him designating the residence mean he gets to?

    Thank you in advance !

  551. Jan Roberg on Sun, 28th Sep 2014 7:15 am
  552. Dear Missing Something,
    Since the children live with you more days of the year, you are the one that gets to claim the children on the tax return. But you’re going to need to prepare for battle–

    you see, he’s been claiming the kids all along so you’re going to be a “change”. And, if you’re using his residence for the school records, he’s going to have some ammunition.

    What you’re going to want to do is make sure that you document that the children live with you. Have them on the lease, have some sort of record–day care provide, church records, medical–whatever.

    You don’t need any of that to file your taxes. I’m just suggesting you get your ducks in row now because I would bet he’s going to fight you. (A soldier doesn’t go into battle without ammo, right?)

    Now this is my stupid, big box tax office, advice–but sadly it’s the best advice I can give you: file your taxes early. If you file your taxes first, you’re more likely to get your refund, his return will get rejected, and he’s less likely to wage the battle since he will lose. If he files first–he’s got the money already and you’re the one waging the war.

    (Okay, I shouldn’t have the TV on while I’m writing these answers. I just saw the promo for the new Brad Pitt World War II movie and my whole answer sounds like a military theme, sorry about that.)

    Now, even if you file first you may still get your refund held up. The IRS has gotten better at screening returns and so they might hold your refund because you haven’t been claiming the kids. That’s okay–they’re just preventing fraud. But have your proof that the kids live with you ready so that you can show them if they ask.

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