Court Ordered Exemptions and the IRS

476 thoughts on “Court Ordered Exemptions and the IRS”

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

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

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

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

5. Hi JDoug,
   Sorry about the bias, you’re right. I was trying not to be too murky with the he/she and him/her so I took a viewpoint. But you’re right, there are lots of good dads out there who wind up being victimized also.

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

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

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

6. Hi Amber,
   Here’s the post you want: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

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

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

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

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

   Thank you for the information.

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

9. @Dee,
   I shouldn’t have said “arsenal of weapons”, that sounded so negative. I just mean you want to have your behind covered. Sorry.

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

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

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

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

12. @Lauren,
    Not the craziest story ever! Sounds like you’re a good person just trying to make things work. Oh yeah, I guess that is crazy. 🙂
    So what is the date of the agreement?

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

14. Hi Lauren,
    If I were the IRS I would just give you all of the tax credits, but I’m not. The bottom line is going to be; what does it say in the divorce decree?

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

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

16. Thank you so much for your response! Very glad to get correct information. Could have been a headache for us for sure.

17. Angie,
    Do not claim your boyfriend’s child. It is illegal and you could have some serious problems doing so. Read this post: http://robergtaxsolutions.com/2012/01/can-my-boyfriend-claim-my-child-by-a-different-father-on-his-tax-return-for-the-earned-income-credit/

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

19. Hi Brenda,
    You’ll need to check this out: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

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

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

21. my ex was awarded dependency exemption.Does this entitle him to e.i.c ..the children live with me.I do side work .He dont follow the time sharing order of the court.HE DOES PAY CHILD SUPPORT …

22. Thank you Jan, I really appreciate the response!

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

    Thanks again,
    Scott

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

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

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

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

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

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

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

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

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

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

29. Hi Ronald,
    Here’s the deal. Your court order gives you permission to claim the exemptions. You are not entitled to claim EIC or Head of Household because the twins live with the mother and grandmother. So, first question–did you file correctly and only claim the exemptions?

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

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

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

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

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

31. Hello,

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

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

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

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

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

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

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

34. April,
     

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

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

35. Hi Tammy,
    You’ll need to talk to the unemployment office. That question is out of my area of expertise. Sorry.

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

37. My ex was behind in child support all year and he paid back child support in full on dec. 29th. I don’t know if this still allowed me to claim my child on taxes. If anybody knows the answer to this it would be great.

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

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

39. Tammy,

     

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

40. hi i have a question i have joint custudy of my son my divorce degree says i claim him ..he claimd him on unemploymnt,now i am on unemploymnt and i think i should hav the right to claim him for the benifit allowence since i take care of him will unemployment fiqure this out

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

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

43. Thank you writing Michelle.

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

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

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

44. Thank you for writing Erik.

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

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

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

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

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

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

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

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

48. …sorry….I saw my typo….minor stays with me full time, visiting HIM (not home) only month during summer, xmas/spring break….

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

50. @Susan,
    Sounds like you’ve covered your bases. You’re good with the IRS and you contacted a lawyer about the local legal issue.

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