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.
_______________________________________________________________________
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
Ok so I have a question, my boyfriend and his ex-wife have shared custody of the kids the court order says if both parents work then one files one kid one Files the other however this year for the whole year we have had the kids full time she moved an hour and a half away so even though there’s a court order that says shared custody the kids have not lived with her at all she has barely seen them and she has not provided anything could he file both of them on his taxes since they lived with us or would he get in some kind of trouble for going against the court order even though she isn’t doing her part and taking care of the kids, I know you said you can’t give legal advice so as person-to-person conversation what would you recommend if you can give me an answer, we don’t want anyone in trouble but we also need that money for the kids and we know that if she gets it it won’t be used on them cause it never is
My child’s father wants to claim my child out of spite when we already discussed I was claiming her we never been married or anything can he do that ? Or how should I approach this ?
Dear C – no, but you can go back and amend the last 3 years!
Hi Devon,
You’ve got divorce papers that allow your ex to claim the “exemption”. But that’s all he gets. As the custodial parent, you still keep the rights to claiming head of household filing status, EIC, and the child care credit. It’s not perfect, but it’s better than nothing.
Divorced mom of two girls. Ex was supposed to claim my oldest and I was to claim youngest. Just found out that he hasn’t claimed her for the last 10 years! He said that he thought I was and that if I can get the credit to do it. Can I get the past 10 years of child tax money?
Ok questions my divorce papers state that me and my,ex alternate years on claiming our kids but it also states that he is to get them every other weekend and he never shows up they r with me 365 days a year I have custody and my child support papers show that they. R with me 365 days a year we made the divorce papers ourselves the judge just signed off do I still have to let him claim them? It makes me sick to think he’s going to get money for kids he never sees
Hi Jennifer,
As far as the IRS is concerned, it’s where do the children sleep – which appears to be at your house That would give you the head of household filing status and EIC – if that’s applicable. So for years when your ex gets to claim the exemption, you still keep the HH status, you just lose the exemption. Here’s a post for you: Split Exemptions
Hi Riley,
You would think that would be a simple question, but it’s not. Here’s a link to the IRS website. They’ve got a tool to help you know for certain if you can claim him or not. Here’s the link: Who Can I Claim as a Dependent?
Here’ would be my questions:
1. where is the child’s mother in this? Does the boy live with her, ever?
2. what about the person your child is living with? If your son has lived with him for the entire year then he may have some claim – you’ve only got your son for weekends.
3. The weekend part – that’s an issue. You absolutely cannot claim him for head of household or EIC if you only get him on weekends.
4. So- back to your ex – what does your divorce decree say? Or, if you were never married, what does your custody agreement say about you claiming him?
5. Sorry, seems like I’m writing a book. Most likely, you will not be able to claim your child as a dependent – unless, there is some agreement somewhere giving you the dependency exemption even though you do not have actual physical custody of him.
Now back to your question – would you get in trouble? If somebody else claimed your child – you’d probably lose. But if you all worked together – you, your ex, the person your child lives with, and you’re working together to get the best benefit for your child – then you’d be okay. But – and this is really important – a lot of times people say they’re okay with letting you claim a child and then they change their mind and the next thing you know you’ve got the IRS sending you those nasty-grams.
So, I’d go to that dependency tool at the IRS website and find out for certain if you can or not. If you can’t, I recommend that you don’t.
Hello, my question is regarding changes in custody. Our original separation agreement/divorce in 2007 stated that each of us claims one child on our taxes, and when the oldest turns 18 we will alternate years on the youngest until she is 18, we also had shared 50/50 custody at that time. This November a new custody order stated I have full physical and he has joint legal, but I have the children approximately 90% of the time. We are awaiting the new court date to discuss child support and tax exemption, but I am wondering if the new order supersedes the old as far as the IRS is concerned.
I have a child who lives with someone i know. I still have all my parental rights and do provide support for my child. My child come home every weekend. Although My child has no relation to the individual whom he live with and helps me support him, would I get in trouble for claiming him as a dependent?
Hi Brian,
You ex wife cannot allow someone else to claim the children. That’s tax fraud. Your divorce decree only allows you to claim them every other year. So, claiming them all could land you in court. I’m not an attorney so I can’t give you legal advice there.
This isn’t legal advice, this is just you and me talking, okay? Maybe a little tax advice thrown in for good measure. There are a couple of types of dependency exemptions. One – is the dependent where – like in a divorce, the children don’t live with you but you get to claim them on your return anyway. The other is where they live with you and you only claim them for head of household, maybe EIC, but you can’t claim them for the exemption or child tax credit because your ex gets to under a divorce decree. Then there’s the regular type where you claim your children for the exemption, and head of household, or EIC – the whole works.
Your divorce decree is only about the exemptions – the first kind I mentioned. If the children live with you for over half of the year, you could claim them for head of household status without claiming the exemptions. Now this is a little funky I get that. I’m guessing that your income is too high for the Earned Income Tax credit – that’s what would make this work because that’s a form where you can show the child lives with you but you’re not claiming the exemption. Or – if you’re not re-married, you claim the exemptions on the 2 children you’re allowed to claim, but you use the third child to claim head of household. You’ll want to work with a tax pro on this – I’m being really funky. But this would keep you within the letter of your divorce decree while still showing the IRS that someone is illegally using your child’s social security number. Another way to do that would be to not claim the exemption but to claim the child as living with you, and claim the daycare expense if you pay that. Once again, doable without violating your divorce decree. BUT-YOU CAN ONLY DO THAT IF THE CHILDREN ACTUALLY LIVE WITH YOU FOR MORE THAN 6 MONTHS OF THE YEAR!
What I’m getting at here is – the friend is committing fraud. You know that. Your ex knows it. Just claiming the dependency exemption isn’t worth a lot of money–so my guess is that the friend is also claiming EIC – that’s worth a few thousand dollars. By claiming you child as living with you – that funks up the “friend’s” EIC claim without you violating your divorce decree. Am I being nasty? Yes I am. Do you want to make sure you’re in the right? Yes you do – that’s why you should make sure you can prove days at your house.
If that’s not an option, if you could not be considered to be the custodial parent, then you could report the “friend” to the IRS for tax fraud. Or perhaps you could just let your wife know that you are reporting the tax fraud. Here’s a link on how to do that: http://robergtaxsolutions.com/2010/11/how-to-report-tax-fraud/
The downside to the tax fraud is that you will never be told the outcome of the story. Confidentiality rules will not allow the IRS to discuss what happens. You report it, and then you’ll never know. But at least you will have done something.
Hi Jan!!! Divorced father of 3 here. Per our divorce decree in 2011, my ex and I have been rotating years on claiming our kids as dependents. We rotate 2-1.
It wasn’t until now that I realized there is no way she could have been filing taxes as she hasn’t worked since right before our divorce. I found out she has been having a friend claim them for her. Time-sharing is evenly split. I also pay child support. We both have equal decision making so no custodial parent. She says she will take me back to court if I claim all of them.
Hi Frankie,
You may claim the medical expenses that you pay for your child, even if you are not able to claim that child on your tax return. Also, since you are the custodial parent, even though your ex is claiming your child’s exemption, you should be able to claim the daycare expenses for the child he is claiming. All he gets is the exemption – he is not entitled to head of household, or EIC, or child care expense for that child, only you are.
So I have 2 kids, my ex is suppose to claim one child. I have to give him the 8332 form every year. He pays child support, and gets them every other weekend. He is suppose to pay 1/2 the medical bills but doesnt. My question is am i able or how can I claim my childs medical and dental bills since I pay them. I do claim head of household because i have my other child. I also pay for daycare for both children.
I.just dont understand that the children have lived with me all year and she gets them every other weekend and I support them all the way and she can claim them on taxes and at a tax place they are suppose to live with the parent 6 mths out of th year to claim them and on irs websites say that to I guess I dont understand that she can get the tax money on the kids and dont help out at all
Hi Darwin,
If your children live with you full time, you may claim your children for the head of household filing status, EIC (if you qualify), and you may also claim the childcare credit (if you have any of them in daycare.) Because you have a court agreement to giving your ex the exemption, she may claim the exemption and the child tax credit – (they go together.) You have a court order saying she gets to.
So protect yourself. Only claim them for what you are allowed to claim. (Head of household and EIC.) She will probably try to claim the head of household and EIC for herself – and she can’t. (It’s probably the most common mistake of all tax returns for divorced people.) So you’ll want to file your return early and correctly so you get the tax benefits that you’re legally entitled to.
Then, when she files her return wrong (which is highly likely) and it gets rejected – and she screams at you. Then you can explain that she’s only entitled to the exemptions and child tax credit – and she needs a form 8332 – which you’ll sign as soon as she does her duty with the school stuff. (okay, I’m overstepping my bounds here, but I’m not very nice. That’s what I’d do, that’s not really tax advice.)
But the tax advice is you claim head of household, and EIC and child care credit (if you qualify) and do not claim the exemptions because she has a court order allowing her to do that.
My kids live with me full.time and have not lived with there mom for 6mths of this yr but says court papers she can claim to but had not helped with any school stuff like coirt order says or anything else except throwing that in my face so what can I do claim tgem since they are living with me
Hi Kristina,
Yes, in part 2 of the form his ex can release the claim of exemption for future years.
My husband and his ex wife have a verbal agreement that each would claim one of their two children on their own taxes every year. Our taxes for 2014 were recently audited because his oldest daughter was claimed on both their returns. We were not informed about 8332 previously. In speaking with his ex she has agreed to sign it so he can claim their daughter. When she signs it can say he had the right to claim her for 2014 as well as all future tax returns?
Hi Sandy,
He owes “millions” in taxes and he thinks claiming one exemption is going to make a difference? No way. Hang on your exemptions. Besides, if he’s really earning “no income” then he doesn’t have any tax refund for the boy anyway.
Hi Shelly,
I don’t know how you can get any money back from your ex. You’d need to talk to an attorney about that. If you have a legal right to claiming your son on your tax return, you may go back and amend for the last three years. (Let the IRS deal with your ex about that!) But for anything older than that, I can’t help you.
My ex owes millions in back taxes, when we got divorced the judge ruled that I could claim both boys on my taxes every year since he will very unlikely have his taxes paid and get a refund. My 15 year old moved in with his dad August 2015, no my ex wants to claim him just so the IR’S will keep the money from his returndate he said it will show he is “trying”. He doesn’t have an income, on paper anyway and in the last6 years has only paid about $600 in child support. Am I right for thinking he’s crazy for him wanting to let him claim my son?
My sons dad claimed him for the past eight years! He had no legal rights to him! I have never signed a form to let him claim him! How do I get my money back from him?
Hi Pete,
Because your wife pays for the health insurance through the Obama Care – she has to put the kids on her tax return “for insurance purposes”. She technically doesn’t have to claim any of them as “dependents” for tax purposes. This is very common with divorced couples. One parent may be claiming the dependency exemption and the other may pay for the health insurance. But you don’t have to give up your exemptions for her to cover the health insurance.
My ex-wife & I have shared parenting. I have the kids 95% of the time. The only expense my wife pays is their health insurance thru Obama Care. She says because she pays their insurance she needs to claim all 4 kids on her taxes. Is this true? I would like to claim 2 kids.
Hi Carmen,
I have no idea how he’s getting away with it. Most likely, he would have qualified for a tax refund. The IRS doesn’t go after you if you would be getting a refund anyway. They only go after you if they think you owe. So – he doesn’t file and you don’t get his refund – which is what you’d get because of the back child support. You could try reporting him to the IRS – but since he doesn’t owe-they don’t care! They’re winning because they’re keeping his money! (Sorry, I said I had no idea, but I guess I did have an idea. Sadly, I’m not helping you here am I?)
It sounds to me like he’s just not filing his returns out of spite. But the thing is, at least if he filed, even though you’d get the money, it would reduce what he owes you and eventually his work would quit garnishing his wages. (Although if he’s just doing it for spite, you could tell him that until you’re blue in the face and it probably wouldn’t change anything.) Sorry.
I have a question, my kids father was behind in paying his Child Support finally he started paying it through his job but is currently owing back Child Support. My question is how is he getting away with not filing his Income taxes now for 8 yrs. He got married last summer so how is he able not to file taxes now that he is married.
Hi Jaymi,
Your boyfriend cannot claim your son on his tax return. It is illegal and he could get into trouble. If you were married to your boyfriend, that would be different. Even though you haven’t been working, you must still have some income and that should qualify you for the child tax credit at least.
You are not the custodial parent so you may not claim EIC, only your ex may claim EIC for your son. Sorry but that’s the rules and you really don’t want to get your boyfriend into trouble over this.
My son’s father was court ordered to allow me to claim our son even number of years. It says in the custody agreement that he has to provide an IRS form 8332 to me on my years. I have been without a job for 6-7 months because of pregnancy. My boyfriend has been supporting my son and I but I am not the custodial parent. I don’t have an attorney. If he fills out the form, can I let my boyfriend claim my son and I on his taxes? My son’s father is against this happening. I just feel he should be able to since he’s been supporting us.
Hi Casey,
I’m sorry about your situation. Even though he’s an ex, it’s hard to have your child’s father in prison.
So here’s where we’re going from here. First, will he even have any taxable income for this year? If he needs to file a return and he needs the exemption, well then you let him have it. (The exemption only!) If he’s been in prison for the full year, and there’s no tax return, well then thee’s no need for him to have the exemption and of course you just keep it. Since he got arrested in February, I’m thinking he won’t have enough income for the year to need the exemption. And, I’m thinking his income will be so low that he won’t qualify for the child tax credit either so I’m really thinking it won’t help him at all. But I don’t know the whole story. The decent thing to do is to ask him if he’s filing a tax return. (My guess is no, but if you ask, at least you’ll have done the right thing.)
Now for the next 8 years, he won’t be needing an exemption at all – so the exemption is all yours. What’s he going to do, take you to court over it? Okay, here’s the part where I say that I am not an attorney so I am not allowed to give you legal advice. So there’s no legal basis to what I just said there. That was just a “for being practical” sake. The IRS is going to be fine with you claiming the exemption. If your ex wants to fight you for it, he’ll have to take you to court. That would cost him money. The exemption would get him no money so what would be the point?
Remember, even if you do give him the exemption for this year, you are the custodial parent and you keep the head of household filing status, the Earned Income Tax Credit (if your qualify), and the child care credit (if your daughter is in daycare.)
Our decree states that me and my ex alternate years on claiming our daughter.on taxes and we had shared custody but since he got arrested last feb he has not seen his daughter since hes in prison serving 8 years but this year is his year to claim her . Will I get in trouble if I claim her if its his year but has not seen her ?
Hi William,
use the IRS’s EITC assistant. Here’s the link: https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit/Use-the-EITC-Assistant
Answer the questions honestly. It’s a good guide.
Hi Angela,
I’m sorry, I don’t know of any way to get around having your social security number on the 8332. You might want to speak with the IRS directly on that one and explain your situation. Maybe they have a solution that I don’t know about.
Hi Michael,
If your ex claims our daughter incorrectly, you would paper file your return. Here’s more information: http://robergtaxsolutions.com/2011/01/my-ex-claimed-my-kid-now-what-do-i-do/
Ok well…wife and I seperated 3 years ago she left the state illegally while on probation and has recently had another child….well my ex and I had signed a local court temporary physical costody at the time for school purposes for my daughter to go to the school zoned where my mother lived…well last 2 years I’ve let my mother claim her…this year I have lived with my daughter every day of the year as has my mom…I feel as if I’ve put atleast 50 percent up this past year…she seems to think I have no parental rights but I have legal custody and am the father…who do you think would be more likely to have tax rights this year..and would head of the house apply even though I’m not main name on the lease…wife hasnt seen daughter in years my 8 year Olds grandmother believes a temporary physical costody trumps me being a father…seems as if I can’t win..
Hi,
Can a custodial parent file the form 8332 directly through the irs and obtain a copy as proof of filing with my own SS# redacted? My ex has not attempted to claim our daughter on his tax years in nearly 8 years and suddenly wants the exemption. Per decree I cannot deny the exemption but because of his history of fraud with erroneous SS#s and obtaining credit I do not want him to have access to my SS# or our daughters.
Hello!! I found this article very informative but still looking for clarification. I am the custodial parent of our 2 children. Our decree says that I get to claim our son and my ex-wife gets to claim our daughter. She (ex-wife) made less than $10,000 last year and wants to claim our daughter. So, if I understand this correctly she only gets the tax exemption and I still get HOH and EIC. Is that correct? If she files incorrectly and files for the EIC and I file for the EIC and she files first. What would be the correct way to handle that with the IRS?
Hi Anna,
I’m not a lawyer and I don’t even know what obligee and obligor mean in this context. I’m sorry.
Hi Brett K,
In tax terms, “custodial” means that the child lives there. I know if divorce terms you can have 50/50 custody and the child may never even see the parent, but in tax terms, it means you really live there. If your ex was in prison for 10 months, your child could not have lived with her. (Unless it was a really special prison!)
So, your child lived with you, you had custody. Your ex doesn’t need to sign the 8332 for you, and you don’t want her to! You are claiming the child for the exemption and the EIC and the head of household and the child tax credit.
If it goes to audit, well – you can prove your child lived with you and ….ahem, she can’t now can she? You win.
Dear Tired of Paying Out,
The question you ask is about “what legal ramifications…” so I’m stopping there. I’m not an attorney. It’s against the law for me to give legal advice.
I am the obligee and the dad is the obligor and he is wanting to claim the kids for income tax. He said if I fail to do so that he will take me to court and I will have to sign the 8832 form. If not I can go to jail. Is this true.?
So my son’s mother is the custodial parent of him and she had custody, she was incarcerated for ten months last year and he lives me (the father). I still pay child support and it is current, I have no means to take her back to court, otherwise I would. Now she says she is claiming him on her taxes when he only even seen her maybe 15 days last year. Is there anthing I can do about this? She has to sign the 8332 form in order for me to claim him and I know she is not going to do that. Can anybody help?
I was legally separated since 2012, 12/2014 divorce went thru and settlement agreement that was signed stated on even tax years I file 2 children, and odd I file 1. Custody is shared (order is exactly 50%/50%) even though i have them more. Regardless, when filling out taxes, if i say the children lives with both of us, i pay for most expenses, and i make way more then ex, HR block and Turbo tax both consider them my dependents based on those few questions. Looking into this a bit, it appears that I could claim all 3, and IRS would do nothing in Ex’s defense unless there was 8332 filed. That said, what legal ramifications would i be looking at should Ex decide to take me to local court where decree was filed and say that i did not adhere to the 2014 divorce agreement since i filed tax exemptions according to IRS guidelines. The Ex up until this year made less than 30k per year, and i make close to 90k. due to this, my state does not care if we have 50/50 custody, i still owe 850 per month in child support. i do not bother going and trying to get primary custody again, becuase its a hassle and the kids pay when we fight. Even tho Ex mainly uses them for the income. i dont feel its right, but i do it as i can afford it. but taxes are getting expensive the more i seem to make, and to me there is not point in someone who makes so little to claim dependents when guidlines say i should…..
Hi Ann,
Let me see if I understand. Dad is the custodial parent, but mom gets to claim the kid every other year. And that’s what she’s done, right? Okay, so dad never signed the 8332. What illegal thing has the mother done? And why should the Dad go back and amend his returns? I’m missing something.
So yes, she’s supposed to have the 8332, but she didn’t. But she was supposed to claim the kid anyway, which she did. Sounds like everything is good. So what’s the problem?
Divorce decree states mother and father are to alternate claiming the child every other year. Nothing is stated about form 8332 in divorce decree. Father is considered by IRS the custodial parent. Mother has claimed minor on her taxes every other year persuent to the divorce decree, but never requested father to sign form 8332. Can father go back and amend the tax years that mother claimed minor illegally To have father claim minor for those years?
Hi Neka,
First and foremost, you only lose the exemption, you do not lose your head of household filing status. If you qualify for EIC, you do not lose that either.
You mention your exes arrears – you mean child support arrears? Or tax arrears? I got lost there.
Are you saying he’s not filing his tax return so that his refund doesn’t get seized for his child support? That’s pretty dumb but it happens all the time.
So—let’s say he still hasn’t claimed your child for his 2013 tax return, which would have been the last time he could have claimed him You could still get the refund by claiming the child on your return. He’s basically got three years to file those returns to still get a refund. If he’s not going to claim your child, you’ve got until April 15th 2017 to get that 2013 refund before it’s lost forever.
I have a court order for child support (receiving parent) and in the Time Sharing order it states that we are to rotate the tax exemptions. However the Non custodial has not filed in 2 years, therefore having arrears of almost 4,000.00 , because its his turn to file the tax exemptions, can he “file” even though he hasn’t in 2 years to avoid interception of arrears.
Hi Andrea,
The agreement is 2009 so the custodial parent would need to sign an 8332 form to release the exemption. Your husband is the custodial parent so he (and you) get to claim the exemption for the son.
Now, the ex might try to claim him, and she might try to use the agreement as her argument–but since you are the custodial parent, you win this with the IRS.
Hi Chanda,
It sounds like you should be able to claim your child on your taxes, assuming that you meet all the other requirements of claiming a dependent.
Including *