Court Ordered Exemptions and the IRS

476 thoughts on “Court Ordered Exemptions and the IRS”

1. Hi Hailey,
   The first question I would ask is – how old is the son? If he’s 17 or over, claiming him on your taxes is only worth $500. So – how big of a fight is this worth? If he’s under 17, then claiming him is worth $2,000 – so that’s a bigger deal. So that’s the first issue.
   Now the second is – how much does his ex make? If her income is low, she might qualify for the earned income tax credit. That’s good money! But she can still claim that, and let your ex claim the exemption at the same time. Here’s how to do that: https://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

   Lots of people don’t understand about how a child can show up on two different tax returns legally, that’s why so many ex spouses wind up fighting. You see, your husband is only entitled to the exemption, he’s not entitled to EIC (if your income is low enough.) So sometimes, it’s just a matter of an honest mistake.

   But with the exemption for a child now being $2,000 – that’s less likely an honest mistake and a “no – I want the cash” kind of grab.

   You may need to go to the attorney and ask if you could just withhold the $2000 you would have gotten on your taxes from the child support. I don’t believe the IRS will be of any assistance for you. Sorry.

2. Hi Jan!
   Thank you for this very informative post. My husband has been having a lot of trouble with his ex-wife. When they got divorced, it states in the court order that my husband can claim his son till he turns 19 and then their daughter every other year until she turns 19. The kids only spend the summer with us and every other Christmas, but we provide 51% of their support. The ex refuses to comply to the court order to give us form 8332 and she claimed their son on her 2018 taxes anyway. Should we go back to court or should we wait to see what the IRS says before deciding to go back to court?

3. Hi Paula,
   I didn’t quite understand, so you’re still married? I think it’s time to see an attorney. You’ve got bigger problems than just claiming your daughter on your taxes.

4. Hi Paula,
   You said left the province – are you in Canada? I’m not a Canadian preparer so if you’re Canadian, you should get a different opinion. The laws are different.

   If you are in the US – at least for the time that your daughter lived with you, claiming her on your return should all be legitimate. Once your daughter left, that’s where the problem begins. You would not be able to claim her after she left.

5. Hi Kim,
   No.

6. I think that my ex might be trying to do something like get chd tax through his spouse and get an exemption with his taxes. What can i do if i just filed every year but he didnt and now i dont know what ai can do about my child support arrears amd i have had to not claim my daughter amd havent got a divorce after 10 years of seperation and now he is planning on doing things hard with my daughter in the middle. Dont know wjat to do. No orders .nothing. my daughter is 16 mow and now everything falls into his time again

7. So I have a question or comment
   My daughters dad and I got married 2007 amd seperated 2008 he left the province and I have had her fulttime with no court involvement. I filed taxes seperate and recieved child tax.until my child turned 16 he told her.she.could come live with him.and has been all a sudden taking me.to court for a stay of enforcement and guardian ship and she ended up staying with him and 6 months later him or his gf has been paying school and keeping my daughter from taking any care from me so that they can claim child tax i think amd will i have to repay it when I never had any information and ive been there for her and they have been living with her parents and I didnt know how this would go amd what to do. So They put me in the situation to not be able to defend myself but I still had her enrolled in school and we are ati married. Qill he be trying to get some.exemption or make me look like a fraud. He has been turning my faughter against me and he has been unwilling to communicate and I font know what he is doing. I just know he is doing ths all for a reason as my daughter explains it as well. Please any thoughts.??

8. I have a quick question that I can’t seem to find an answer to.

   My court order allows my ex-husband to claim one of our children each year (starting with the 2017 tax year). I know it sucks but I’m obviously not going to be in contempt and refuse to sign it. HOWEVER, my ex recently filed his taxes, claiming our son but he never asked me to sign the 8332. Since he did not have me sign the 8332 does this mean that I can claim our son on my taxes since he didn’t follow the requirements for filing?

9. Hi Nancy,
   Hmmmmmm. Sounds a little slimey to me! The IRS won’t do anything about that. I don’t know what family court will do. Sorry.

10. Hi Anne,
    Okay, I’m not a lawyer so I cannot give you legal advice. Here is my tax opinion with a little “aha – girlfriend” opinion to go in with that.

    Tax opinion: if you have lived apart from your husband for at least the last 6 months of the year, and you have the custody of the children, then you are entitled to file as head of household claiming the children as your dependents – as far as IRS regulations are concerned. Tax opinion.

    Girlfriend who knows a thing or two about taxes (not necessarily nice) opinion: That man done gone and claimed you and the kids as exemptions on his W4 over the past year to get more money in his take home pay check and now he’s gone and tried to filed the taxes and found out that he owes the IRS a boatload of money. He went crying to his lawyer because the only way to save his sorry XXX is to have you file jointly with him so that he can claim the child tax credit and exemptions.

    So, I’m not a lawyer, I can’t give you legal advice. You have your attorney for that. All I can do is give you knowledge, and knowledge is power. You know your husband owes a bunch of money to the IRS. (Right, I didn’t prepare his taxes, I’m making a guess here. But I’ve done enough tax returns for men going through a divorce, I can pretty much guarantee he got the ugly truth thrown at him with the tax thing. He owes a bunch!) Only you can save him. You with your married filing jointly tax status – which means a lower tax rate, and your lovely children with their exemptions and child tax credits.

    I can’t tell you to violate a court order to file jointly. It’s a court order. But you have an attorney, and you need to have your attorney fight for you! What are you losing by filing jointly? First thing, you want to at least prepare your taxes so that you know how much you’d lose out on financially. Second, if your husband is self-employed, or has ever done anything “questionable” taxwise – you want to point out any risk you may suffer in that regard as well.

    So I would be asking, where’s the child support? Where’s the health insurance? What am I getting for filing jointly? What’s in it for me? What’s in if for my children? How am I to be protected in the event that my so to be ex-husband isn’t a lying scumbag on the tax return and I get hit up by the IRS to pay for his tax fraud? (If that’s a possibility.)

    Good luck. Sorry I’m not more help.

11. My ex spouse was allowed to claim both my children with the 8332 form and was court ordered to file taxes each year. He is now claiming 9 on exemptions to avoid child support arrears. Is that something I handle with the IRS or Family court? Thank you!

12. Hi, I have been in a divorce dispute for 3 years but I am the only one who takes care of my kids. Husband lives w girlfriend in another state. We finally got a temporary order and it says that I have to file married jointly! Why? My lawyer wont respond but I planned on filing head of household! What can I do???

13. Hi Amy,
    Your divorce decree has a “condition”. So the IRS doesn’t count that as valid for tax purposes.

    I am not a lawyer, so I cannot give legal advice. Now, common sense advice would hold that your ex would need to be paid up through December of 2017 to be able to claim a child. But like I said, I’m not a lawyer, so I can’t give legal advice.

14. Hi Crystal,
    So you’ve got a bunch of issues here, so I hope I do them justice.
    1. Because you ex-husband is married, his wife could be entitled to claim his children on her return – just so you know.
    But–
    2. You have been the custodial parent, so you are entitled to claim all four of the children as far as EIC and head of household filing status is concerned.
    3. But, by claiming 2 children – you already qualify for the head of household filing status, and most of the EIC (if you qualify) already. But, you could still claim the EIC that would be available for your third child.
    4. You ex- would only be allowed to claim your children for the exemptions and the child tax credits.
    5. Because your ex is married, if his wife files jointly with him, they may still claim the exemptions for the children on their joint tax return.
    6. But if I understand you correctly, the ex’s wife was claiming your children on her return – solo – and your children were not living with her at all. Right? If that is the case – I think you could amend your returns and just claim your children. Your ex has rights, but his wife, not so much. Not without him.
    7. So, now your ex is out of jail and I’m assuming that they are going to file together. I’m thinking you mean she wants to file for “injured spouse”. It doesn’t entitle her to half of the return. It only protects what would be her refund against being taken for his back child support payments. For example: let’s say she has kids of her own that entitles her to $5000 of EIC. By claiming injured spouse she could protect that part of her refund. But, she can’t protect any part of what would be your ex’s refund. Does that make sense? She can only make a claim to what is legally hers, not his.
    8. Finally, I don’t think that you could call what she did as fraud. I think it’s a very real, and honest (or not, but could be honest) mistake. So while I think that what she did was wrong, I don’t think the IRS would consider it to be fraud. Wrong though, so like I said earlier, I’d file an amended return and claim those children for the years she claimed them.

    I hope I got it all!

15. How long does my child’s father to catch up on back child support in order for him to claim him. Our court order says “if he’s caught up” he can claim him. Is there any specific date that you may be aware of?

16. Alright so, I have 4 children with my ex husband. In our divorce the attorney split the kids between the 2 of us saying he claim the 2 oldest and I claim the 2 youngest. However, I am the custodial parent, and during the last 2 years my ex husband was incarcerated. So 4 the full 2 years all 4 children we’re in fact fully supported by me. Both years however, his new wife continued 2 claim my children, and in doing so I of course didn’t receive any back child support as my ex was no where in her filing 4 those 2 years. It is my understanding now that this year, (his 1st year after his release) that his wife is going 2 file a grievance paper (I believe that’s what it’s called) because apparently her being the current wife she is entitled 2 at least half of the return. Is this true? He owes well over $20,000 in back child support. Also, were the 2 years she claimed my children in fact her committing fraud?

17. Hey girlfriend! So I can’t talk about court.

    But, you can “oopies”. My bad. But you were reading the IRS website and it specifically states that only the custodial parent may claim the child. That was in IRS publication 17 starting on page 26! Now, the pages that I use – (me Jan when I’m talking about splitting the EIC and the CTC) are on page 28 – but you didn’t read that far!

    How can you have used the money though? Your refund shouldn’t come until February 27th? Okay, I’m not going to ask that. But here’s something you should know. If you amend your return before April 15th, it doesn’t count as having ever been wrong in the first place.

    Personally, – just me, not professional advice, I would tell your ex that you would sign the 8332 as soon as he pays up his back child support. Then, once he’s made good, then give him the 8332. You’d probably get more from the child support than you’d lose on the taxes. Just sayin’. (You know, over coffee.) Oh, one more thing – I’d also make sure the check clears before handing the form over.

18. Okay gotcha. I do think i’am SOL though, i’ve already filed. Do you think i have a fair chance to prove in court that i was under the impression that he wouldn’t be able to claim him unless he was up to date on back support, and also had him more than 6 months out of the year. (which he isnt and which he did not). Also if i submit letters from family members to prove he did not. Also it wasn’t my intentions to go against the court order by any means, i did think that the order would start from December and beginning the new year and so forth, not back track for the past year. I was mistaken into thinking he would have that right when he didn’t have him. Okay so at this point ive already filed and what do i do if I’ve used the money. I just want some confidence to know i still have a chance to prove this in court. I do appreciate your advice as a friend 🙂

19. Hi Caroline,
    I’m not a lawyer, I’m a tax person I can’t give legal advice. But let’s just do a little common sense thinking for a minute. You have a court order that was signed in December that has you alternate years for taxes. He gets to claim odd years. 2017 is an odd year. He has already hired a lawyer over this and he’s willing to take you to court. Your court order does not require that he pay child support. I’m not a lawyer, I cannot give you legal advice. But Jan, your friend, we’re just talking here, I’m thinking that you’ve got a problem.

    Okay, now let me go back to being Jan the tax lady where I can give you advice, okay? The IRS doesn’t give diddly squat over your child custody decree. The child lived with you – you’re all good.

    But you’ve got that court thing. And although the IRS doesn’t care, the court (I’m not a lawyer) but the court does. So how do you satisfy the court order and protect yourself to the best of your ability?

    I’m saying to sign that 8332 for for your ex. Amend your tax return. But you are only releasing the exemption and the child tax credit, you keep the EIC and the head of household filing status. (Or, if you haven’t filed yet, just file that way.)

    Here’s a post explaining what I mean: Split Exemptions: Claiming One Child on Two Tax Returns the Legal Way

    So you claim your child for head of household filing status, and EIC, and the child care credit if you have child care. You sign the 8332 which allows your ex to claim the exemption. Claiming the exemption also gives him the child tax credit.

    When you sign the 8332 – and he takes it to H&R Block or wherever, it’s the giant red flag that says he does not get the EIC or the head of household filing status. You want to sign the 8332 in this case. So you lose some money, but not all of it, and you’re 100% in compliance with the court order so if they do take you to court – you’ve done everything by the book.

    If you do your own taxes, here’s some help for doing the split exemption thing: How To Do the Split Exemption

    Good luck.

20. Hello, me and my ex went to court. In December the order was 50/50 custody. With no child support and alternating years for taxes. For 2017 he did not have him half the time until September and then it got put in writing and signed by the judge in December. In the order it states I’am the custodial parent. But he is trying to claim him for this past year since he gets odd years. He keeps texting me to sign an irs form to give him the permission. Also his lawyer sent me a letter saying if i don’t cooperate ill be sent to court. I already filed my taxes claiming my son. Now what do i do? I’m not trying to go to jail or end up having to pay any fees. He’s been on back support and still owes over 5 grand. I don’t see why he should be able to be allowed to claim him. I don’t have money to afford a lawyer and going to court on my own would be way in over my head.

21. Hi Aly,
    As far as the IRS is concerned, you’re fine. You have actual physical custody more than 50% of the year. So as far as the IRS is concerned, you’re good. What your local court will do is not something I can legally discuss, I’m not an attorney.
    But- just for the sake of argument, let’s say your ex takes you to court and they say you have to release the social so your ex can claim your child. You are only obligated to release the exemption and child tax credit. You still hang onto the head of household filing status and – if you qualify financially, the earned income tax credit. So if that happens, you will sign a form 8332 releasing the exemption – and only for this tax year. Don’t sign one of those “forever” release forms. You always want to keep the power to deny it in the future.
    You might want to read this post for more information: Split exemptions

22. Hello,
    I went to court to file custody papers we have 50/50 custody,each year we take turns claiming my son. He is 1 I claimed last year and the court told me he can only claim him if he is up to date on child support. He is far behind on child support and told me he is going to take me to court for not giving him my sons social so he can file. What will happen if I claim my son? Also my son is only with his dad 10hours on SAturday and that’s it.

23. Hi Justin,
    The father has the signed 8332 form in his hand and he can use it to claim his son on the tax returns. Now, for what it’s worth, your wife only signed away the exemption and the child tax credit. The 8332 does not release the child care credit, nor the Earned Income Tax Credit – if you qualify for those.

24. My wife signed the Form 8332 to alternate years claiming her son, but the father only has him a few weekends a year. What will happen if we claim him in a year that the father’s supposed to?

25. Hi Rosie,
    So, if your ex amended her return to take the child off, and she is not claiming that she is the custodial parent, then she should not sign the 8332. You are the custodial parent for this year. You will claim that your child lived with you for 7 months. (I realize you only had her for 6 months, but your tax software is going to require you to put 7 months in there to claim custody for the tax year.)
    If you received an 8332, then you couldn’t claim head of household – so your ex is doing you a favor.

    It sounds to me like your tax return is only claiming the exemption and the child tax credit – but you should be entitled to the full – head of household status, child care credit and EIC (if you qualify.) So – you need to make sure that you’re claiming everything – not that you are a non-custodial parent.

    Okay – and just a heads up. The IRS might go – wait, why are you trying to claim it all? Because you can! That’s why. But make sure you go back and complete all of those due diligence forms showing you as the custodial parent, and not as the non-custodial parent. That’s what needs to happen for you.

26. hi I have a situation where 50/50 was awarded no child support claiming child every other year but my ex claimed the child when she wasn’t supposed to. irs advised me to take her back to court. I did the court ordered her to amend her returns and gave her a date deadline. she said she already amended her returns but the irs still wont allow me to take the credit without the 8332 form being signed. she doesn’t want to sign it because she says she is not the custodian parent. she did what the court ordered her to do which was to amend the return why isn’t the irs just fixing it

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