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: Split Exemptions
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: My Ex Claimed My Kid
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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Here are some links that might help
EIC questions of any kind: EITC Help
How to find free tax preparers: Free Tax Help
How to find your local IRS office: Contact Local IRS Office
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.
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?
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?
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!!!!
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?
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.
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?
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?
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?
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?
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.
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.
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.
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.
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.
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.)
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.
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
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?
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.
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.
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.
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.
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.
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..
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 🙂
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.
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.
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?
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 ?
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!
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
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
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.
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?
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.
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,
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.
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.
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.
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
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.
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?
what is the irs.code for more than one person claiming the same dependent?
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.
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.
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.
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.
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.
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.