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 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.
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.
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.
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.
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. 🙂
@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.
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?
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?
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.
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.
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?
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!!!!! 🙂
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.
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!
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.
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?
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.
Sorry I am meaning that he had been requesting HR Blocks help for 2 years and did not recieve any.
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!
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?
Good luck Kathy!
*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
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.
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.
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.
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.
@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.
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.
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.
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.
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.
Thanks Ada,
I’m going to try to find that article. Good luck in court!
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
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
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.
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
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. 🙂
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.
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.
Thanks for posting, plan to read in just a few, as soon as I chase some straggling kids to bed.. : )
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
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. ; )
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!
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.
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.
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????????
@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.
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
@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.
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.