Court Ordered Exemptions and the IRS

476 thoughts on “Court Ordered Exemptions and the IRS”

1. OK, I have a question regarding amended returns. Upon reading your responses to the questions on this website, I believe I might be able to amend a bunch of my prior years returns to receive one of my sons as a dependant, and alas receive the additonal money back I was initially due. Ok here is my issue. My ex-husband and I were divorced in 2000, we have 2 sons together. Our divorce decree states that my ex-husband, the non-custodial parent, gets to claim both children as dependants unless I make 6,000 in a calendar year. If I, the custodial parent, make 6,000 or more in a calendar year, I am then allowed to claim the youngest child as a dependant for that tax year. Here is the issue I have been facing for just about every year for the past 12 years. My ex-husband is in the military, and he has absolutely “zero” contact with our boys. I never know where he lives and I have always tried to find him each year to let him know I met the stipulations listed in our divorce decree and would be taking our youngest, but more often than not I have not been able to locate him. So I would file my return on the first day eligible for e-filing only to have the return kicked back to me saying I was unable to claim one of my dependants listed, so rather than go through the hassle and have to wait., I would then just file the return without him listed and essentially allow my ex to claim him even though by what was stated in the divorce decree he was not allowed to. Luckily for the first time in 12 years this year, I finally beat him to the punch and was actually able to claim my son. Basicly my question is, am I able to go back and amend the returns where he claimed him, since there is a stipulation listed in the decree, since that is not proof enough for the IRS? and if I am, how far back can I go?

2. Hi Jeff,
   It sounds like your daughter never really lived with you and she probably doesn’t claim your address as her home. I’m also guessing that she uses your ex’s income on her financial aid application too. I’m sorry but you won’t be able to claim her for EIC.

3. we have alternating weekends. starting on Friday. but thank you again, i’lll give the link a look. I pretty settled in on the thought I couldn’t do much at this point this year & it’s no point trying explain anything to the mother. thank you for your time again, I am grateful.

4. Hi John,
   I’m still reading Monday and Wednesday. Where is the child Tuesday, Thursday, Friday, Saturday and Sunday?

   EIC will go to the person who has the child the longest. So–how are you going to prove it? Here’s a post about the proof to provide: http://robergtaxsolutions.com/2012/11/what%e2%80%99s-new-with-the-earned-income-tax-credit-you-need-to-know-this/

   Do you have a diary of the nights you had him? Or anything? Medical records are the best proof for really little ones so you’ve got a tough road ahead of you. What you’re trying to prove is 184 nights. That’s what it comes down to.

5. Hi Holly,
   I recommend obeying the court order. Remember though, the court order only covers the exemption–the parent that the child lives with the most can claim head of household and EIC.

6. Charity,
   is there any good reason for you to disobey your court order? Sign the 8332 and let your ex claim his child.
   He cannot use the divorce decree to claim your child, but so many people file without having the 8332 form that it’s unbelieveable. There’s nothing in the computer software to keep that form happening.
   Now–if he’s done nothing wrong and you’re just not signing the form because you “don’t feel like it” then you’re being a jerk. I don’t think that’s the kind of role model you want to be for your children.
   When you release the exemption, you still retain the rights to EIC if you qualify.

7. Jan, sorry for being difficult & a ton of misspelling. I am sending all this through a mobile device. the more I read & understand that I do qualify for EIC I get more upset. ok, fact my child was born June 2011. December 2011, I was ordered visitation for every other weekend. Jan 27 2012, I was granted joint custody & have had my son for more nights then his mother, FACT. I have been to his doctor appointments, with her as well, but his address shows hers. Dentist appointment & the address says hers. even though I have cared for my child every Monday & Wednesday night except one night the court order only says I have him Wednesday & every other weekend but I can’t show any proof. his other parent is extremely difficult & has used him as a “pawn” from day one but rules these days favor the mothers almost always. so what can I do in the future to make sure I am entitled to everything I am eligible for, caring for my son. I do plan on going to court again this year & getting everything processed correctly. I am extremely thankful of you & wasting your time, if I was more aware of the “benefits” or “exemptions” of claiming a child on taxes I would have made sure all this was handled before. love ya lol.

8. Hey Jan…..just will cut to the chase on this one………divorced in 1996 Joint custody but mom has had custodial rights….decree stated she could claim her as a exemption which I have allowed …no problems … ( she is emancipated)now she is in College 19 years old full time student and living on campus….I lost a job and can I claim her under EIC? Mom makes alot of money and would not quilfy for EIC……..can I ask for the EIC even thou she has not lived with me for more than 6 months….what will happen if she lives on campus ( out of her moms home) till she is 24 Years old per the IRS ???? thanx Jeff

9. thank you but I have a feeling I wasn’t clear, maybe didnt war what I think I wanted to hear lol. December 2011 I started taking care of my lil man. because of my work schedule I got off at 8 & picked him up as soon as I got off. I was under the impression that EIC goes to the parent who had the child the most nights, which I’m sure I have had the most nights during the year of 2012. I had him EVERY wendesday & monday night last year with the exception of one Monday where I was sick.. am I still “screed over” lol? also, I would like to ask you will I be able to file for EIC one day as the schedule changes & he stays with me more & longer, he already prefers me & doesn’t want to leave almost everytime she picks him up.

10. Hi John,
    Your post states that you weren’t granted visitation until December–therefore you do not have equal or more days. Your ex gets the EIC. She’s giving you the exemption as ordered in the decree. She did the right thing on her taxes. Sorry.

11. Hi Gina,
    You can still claim the oldest two for EIC. Here’s how you split the exemption: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

12. i was wondering what if the parents were never married but the custody papers state that the respondant claims child on even and the petitioner odd years..and she is threating to call a laywer because she wants to claim the child on the even year? do we just uphold our end of the court ordered tax filing?

13. I live in Ohio. My divorce was final in December of 2011. My divorce decree states the ex gets to claim 1 child, and I get to claim the other. I never signed a form 8332. Does the ex have to have this form before he can claim our child or can he simply send a copy of the decree with his taxes? he owns a small business if that matters. What happens if I claim both children since he never got a form 8332 signed? can he still claim that child if I already did or without the form? Thanks so much for your time!

14. & also i pay $250 child support, every month, on time. 🙂

15. hello jan, I would you to know that I found this site off a google search & you are very, very helpful. this is my first year filing taxes for my son & his mother is making this difficult. for one we are not together & haven’t been some before he was born, which was June 24, 2011. after his birth she told me his wasn’t my child, & after months of her games a DNA test revealed that to be false he was mine. it wasn’t til December where I was given visitation rights & last January joint custody. our court order states a number of details such as I have his Wednesday nights & every other weekends (but we had an agreement which was clear in court that they got wrong which we follow that I would have him Monday nights as well) following this schedule gives us both four nights each & every other weekend. also the court order states “ORDERED, that the defendant shall be entitled to claim the minor child for federal & state tax purposes in even-numbered years & the plaintiff shall be entitled to claim the minor child in odd-numbered years”. now the problem occurs today, she had filed her taxes before me & she filed EIC but didn’t use him as an dependent, my problem is she says I’m not entitled to eligibility for EIC since she pays for his dental & medical insurance (which was already handled before the joint custody I might add). I know for a fact that I had my son more nights than her because I had more holidays, during doctors visits when I took off I keep him & odd occasions she “needed” me to watch him. I need your advice & greatly appreciate it to see if I should be or can get EIC.

16. ok, so my ex and I divorced in jan 2010. In the decree it states that he claims the two oldest children and I claim the youngest. I am the custodial parent of all 3. Just found out that he was supposed to have me sign an 8332 in order to claim the 2 oldest but he never did. I have tried to talk to him but he never answers or returns calls or texts. I am tired of trying to help him get things done right and since he is WAY behind on support, I feel I should just go ahead and claim all 3, as by IRS rules, I have the right to.

    How big of a can of worms will I be opening when he files claiming the 2 oldest, even without the 8332?

    If I continue to be “nice”, HOW do I claim the two for the EIC on my return?
    I make way less than he does.

    Thanks in advance!

17. Hi Trinity,
    Your ex is just being a jerk. You divorce decree was in 2008, and it has no conditions. He could just use the divorce decree to claim your child–he doesn’t need you to sign anything. There was never any need for you to sign the 8332. I’m guessing that he finally figured that out. But claiming that you didn’t allow him? Really?

    Now–he would only get the exemption and child tax credit anyway. You always ALWAYS always get the EIC and the HH designation. Always.

    So–worst case scenario–he goes to the IRS and files back taxes–the farthest he can go back is 2009, if he waits until after 2009 then he’s lost that too. (Statute of limitations.) So–he get’s even numbered years (oh–who cares about 2009 then?)

    So all he’s got to argue about is 2010. Okay that $1000 in CTC and some money for the exemption–between $400 and $900 about depending upon his income. That’s the worst case scenario.

    So–here’s your weapon. Since he owes back child support, the court should be levying his refund to pay you. Make it so–and then you’d get the money back anyway as your child support! (Okay, it doesn’t work that easy, but still it is kind of a burn on him now isn’t it?)

    I shouldn’t be so mean to your ex but I decided that I like you and I don’t like him so I can’t help it. (I hope you’re nice, I really don’t know you either.)

    Anywy, hold your head up. You know what the worst is and it’s bearable. Here’s more information on splitting an exemption like for a court ordered exemption case: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

18. Hey Teather,
    Sorry I skipped you, I thought Mike had answered it. You asked about your husband claiming his child even thoough he lives in a different state.

    Court ordered exemptions are just that: EXEMPTIONS. It also includes the child tax credit. You don’t have to live in the same state in this case because the ex can sign an 8332 form.

    Your husband cannot claim EIC on his child because the don’t live together. He and his ex can split the exemptions–meaning that your husband gets the exemption and CTC and his ex gets the EIC and head of household designation. Here’s more info: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

19. Hi Cathy,
    1. Don’t count on your ex to give you money that is rightfully yours to begin with.

    2. File your tax return the way you are supposed to file. Do you have custody of the children? Not “what it says in the divorce decree” I mean do the children live with you? If yes, file and claim what you are entitled to. Give him the exemptions and CTC to the child he’s entitled to. See this post: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

    You might have to fight over it so make sure you’re in the right with the IRS for whatever you claim. Then go for it.

20. My divorce was finalized early in 2008. We have one child. We have a shared parenting plan that states each parent is designated residential and legal custodian of our child during each parents respective parenting time and then names me residential parent for school placement purposes. I have our child the majority of the time. In our plan my ex gets every other weekend and one night during the week (he only takes our child every other weekend). In our decree it states that my ex can claim him in even number years and I get odd number years. It was suppose state that he could not claim our child if he were not current on child support however that was left out. It also says that each year the appropriate parent shall make available to the other parent all irs forms (currently irs form 8332) to effectuate the terms of this provision. I did not have the money to take my ex back to court previously about the clause that was left out regarding back child support. I have claimed my child on all years to this point. Now my ex is threatening to send papers in to the irs so that I get pentalized for not allowing him to claim our child. I have no idea which direction I should go with this or what I can/should do so I do not get pentalized. Please help.

21. hi jan
    i was divorced since july 2009 and in the divocred decree we rotated every year.last year of 2011. my ex husband ask if he claim all of our three kids.(he claims 2 and i claim 1 of 2011). and promise to give me money but never did. last year i told him i was claiming all 3 since i didnt claim any. i found out this year he did his taxes and claim 2 instead of 1 and what should i do ??? i followed our divorced decree and he hasn’t.

22. Hi Okalani,
    You fill in the tax year that the form is for–so you’d put 2012 for this tax season.

23. Hi Liz,
    He has a 2004 court order. If there are no conditions, he can attach the pages of his divorce decree to his tax return and just claim the exemption. No waiting for an 8332 form.

24. Hi Jill,
    You have separate residences. Go ahead and split the exemption.

25. Hi Brian,
    Parents working together for the sake of their child are “good people”. As long as you and your ex agree about switching–you’re fine. Have your ex sign an 8332 form for you. You will claim the exemption and child tax credit–your ex will still be head of household and if she qualifies, she’ll get the EIC. And doing that will all be legal and tidy.

26. On the form 8332 it states on part 1 “release of claim to exemption for current year” does that mean this year 2013 or 2012?

27. If there is a clearly written court order in a finalized divorce decree stating that one parent claim one child each
    (there are 2 children) on taxes. Isnt it a major breach if the mother custodial, refuses to sign the 8332, and claims children every year. isnt that illegal. this has been going on since 2004, because he doesnt claim a child, he ends up owing the irs money.
    please advise.
    Thank you

28. Hi. My daughter was born “out of wedlock” in November 2012. Her father and i still have seperate residences, although we have always been in a devoted long-term relationship together. We sleep at his home 2-3 nights each week, and he sleeps at ours 1-2. For tax purposes, i first assumed i am the ‘custodial’ parent since she obviously spends ALL of her ‘nights’ with me and he only gets to sleep with her 80% of the time. I intended to sign the 8332 so he could claim the exemption and child tax credit, while i would still claim the EIC, etc. (It may be worth noting that his income is too high to qualify for the EIC anyways, and the exemption would not really help me since my income is so low.) However, apparently one of the conditions for this special rule is that the parents must have “lived apart at all times during the last 6 months of the year”. First of all, does “live apart” mean each of us financially maintains a seperate household, or does it mean each cannot sleep at the other’s house? And if you say we are considered living ‘together’, would i even be the custodial parent at all? (I am assuming highest income is the determining factor in who gets to claim the child for unmarried parents living ‘together’.) But most importantly, does our situation mean i cannot claim the EIC or head of household anyways? Because although i lived with her every day, he also slept with her for over half of those nights??? Thank you for any advice at all. I realize our arrangement is quite uncommon!

29. Hi Aaron,
    You’ve got it right, you should claim head of houshold and EIC, she should claim the exemption. If she over claims (and I’m guessing she will) your return will be delayed for 75 days. But that’s better than in the old days. You will win your case and you’re in the right. Get your ducks in a row now to prove the child is with you. Dad’s tend to be, shall we say, “looked at more carefully”–so just be prepared. You do have custody, you can prove it. Good luck.

30. I guess that I should also add that our divorce was finalized in the early part of 2008. There have been 1 or 2 years where she’s let me claim our daughter when it was her turn but those years it was also debatable on who our daughter actually stayed with the most that year, but this year she has definitely spent more time at her mother”s house. My ex-wife and I are on friendly terms I should also add. I just want to know if this is legal or not for me to do this even though she has no problem with it.

31. I have a question. My ex-wife and I have joint legal and physical custody of our daughter. My daughter lives with her mom most of the year and I take her every other weekend and as often as I can on other days. My divorce decree says that I can claim my daughter every odd numbered year. The question being, my ex-wife claimed my daughter for 2011 (my last “turn”) due to issues where I was unable to see my daughter for a good chunk of that year, so, my ex-wife said that I could claim her this year even though it is technically her turn. Is this at all legal or is this going to get me into trouble with the IRS?

32. Hi Rohn,
    You have a couple of issues but you’ll be able to answer those questions.

    First–is your daughter able to be claimed as a dependent at all? She’s 21. Is she is school full time? If not, does she make less than $3800? Does she live with your ex or on a college campus? Or is she disabled? Basically, if your wife can claim her, then she can be claimed.

    If she can be claimed as a dependent, then it would be possible for your wife to give you the exemption. Doesn’t matter about the divorce decree–this is a post decree kind of thing. She would sign an 8332 form to allow you the exemption.

    There’s no EIC or Child tax credit for you though so the exemption is only worth your tax rate times 3800. So, if your tax bracket is 25% then the exemption is worth $950. If your tax bracket is 15%, then the exemption is worth $570. It’s important to know how much you’re getting out of this to see how big of a fight you want to make of it.

    But the bottom line is–I don’t see there being a reason she couldn’t release the exemption to you.

33. Please help. I have raised 2 older children alone.. remarried and had a 3rd and unfortunately got divorced. I have no court order just my divorce agreement which states she can claim the child at the end of the year and custody will be completely 50/50. Because of her issues I have had my daughter 100% for the past 7 months and she has not contributed anything. I know court is down the road for custody but what can I file legally this year? Head of household and EIC and just let her file claiming a dependent. She will try and file w dependent head of house and the EIC. She just wants the money of course and has no responsibility. Can I file a EIC and head of household and be ok? Or will it get kicked back? Would I have to repay any return I recieved? Please help w any info. Sincerely, Aaron

34. My child is 21 years old. I stopped paying child support in 2010 when she was 19. I live in washington state. Even though the divorce decree states that I have the right to claim her as a dependent, I never have and my ex wife always has. This month, she wrote and told me that she wants me to split the medical costs that she has incurred through her work deduction all last year – $1,200 as well as 100/month payments until my daughter is 26. I figure since she claims head of household as well as gets the exemption, I should not have to give her anything. She wrote me a nasy letter and when i responded with, okay, but i;ll take the exemption this year, she stated that it only holds true while i was paying child support? Although, I provide for my daughter in other ways, cars, car maintenance, insurance, college costs, it seems like my ex just wants me to write her montly checks forever

35. Hi Nikki,
    Your husband can only claim an exemption and child tax credit, no EIC or head of household. Also–he should only be able to claim that if you sign the form 8332 allowing that.

    As far as the IRS is concerned–he can’t claim her without it. Now he’ll probably try, and if you fight you win. But just know what to expect.

    Since your divorce isn’t final, his only options for filing are married filing jointly or married filing separate. MFS is a really bad filing status.

    You can claim Head of Household because you’ve got the kids–and that’s a really advantageous filing status.

    You may want to negotiate signing the 8332 form for him–as in “Okay ex, if you catch up on the child support I’ll file the form–otherwise you can’t claim your daughter.” Or you might want to be nice and just let him claim anyway.

    But, if you’ve been working and have earned income–don’t let him claim that he lives with the kids–you don’t want the precedent there. They live with you and that’s important on your taxes and your financiall health.

36. I am from Ohio and separated from my ex in May of 2012. We have not went to court yet for a divorce. We have two children together and we went to court in September 2012 to establish child support. In the child support paperwork it states that my ex can claim our youngest child as long as he is substantially current on his support. He did not file for visitation so there is no visitation order. I let him see the kids when he asks but it’s not very often. He is not significantly behind but still is behind on support but he told me he plans on claiming our daughter. Would he be able to claim her since as of the end of 2012 he was still behind on support?

37. Thank you so much for letting me know what the current law is it really helped me in what I need to do!

38. I have a question.

    My husband was divorced back in 2004 and he has 3 kids. In the court papers it say she (the ex-wife) can cliam the younger 2 children and my husband can claim the older child. Last year when my husand filed his taxes they was told him that he couldnt carry his oldest child because the IRS made a law to where if the child dont live wiht u aleast half the year he wouldnt be able to carry her and the IRS dont care if it is court order that he could carry her.

    is this true?? what do we do?

    he pays child support all year round. its not fair that she (the ex-wife) gets the child support pluse she gets to carry all 3 children at tax time.

39. Hey Pixie,
    Thanks. I like Danish! I’m happy with you paying the bill for the person behind you though, that’s sweet.
    Here’s the thing about the IRS–your divorce decree has conditions! That means, that if you claim the exemption, the IRS will side with you. (Now, if your ex takes you to court, that could be a different story, but the IRS will side with you!)

    If nothing else, it wil get his attention and maybe make him pay up on time.

40. Hi Mester,
    It sounds like you’re getting the short end of the stick here. I’m not a lawyer so I can’t begin to tell you how a judge would rule. From some of the posts I’ve seen, it looks like it’s different in different states and sometimes just plain old different with different judges–so I really can’t even guess.
    Here’s what I do know–if you have your decree changed to remove the conditions–then it’s a new decree and anything after 2008 requires your ex to sign the 8332 anyway! So that might not help you.
    I did hear of one case where they went to court and the judge ordered the ex to sign the 8332–so that might help. But you’ll need to speak with a lawyer. Sorry.

41. Thanks for your response, Jan. The next time I stop at a drive-thru, I’m paying for the person behind me just because I’d buy you a coffee and danish if you weren’t halfway across the country.

    I think you’re correct about legal advice, but I might as well give up the exemption as pay an attorney. So my question is: what will the IRS decide if we both claim the exemption? EIC doesn’t apply (my income is just above the max), but that means I can prove I paid the bills. The court order is from the late ’90s. Unlike some of the posts I’ve read, our living arrangement is simple: just the two of us in our own home. NCP spent zero time with his child in 2012.

42. I got divorced in 2002 and in my divorce decree it states that I can claim the youngest child and she could claim the oldest child as long as I am current on my child support. I was behind for about a year because of being out of a job for a few months but caught up quickly as soon as I got a new job. I want the best for my kids so I make sure I am always current on my child support and I make sure they have the things they need. Since 2003 I have claimed my youngest and the first year she was ok with this. Ever since she has claimed him also and every year but one I have had to pay that money back. I ask her about this all the time in emails every year I go through this but she refuses to speak with me about this. So I know I need to go back and have the judge switch how the decree and simply not have any clause on me claiming my son. The only thing I was curious about was if I took my ex to court in a civil manner if I would be able to recoup this money? Or will the judge side with the IRS’s decision?

43. Hi Pixie,
    I think this is a question for your lawyer. I’m not qualified to answer that question. (I have an opinion, I think I should whomp NCP upside the head for you, but that’s not really a professional opinion, just my opinion and it doesn’t do you any good.)
    Remember, you are only releasing exemption and child tax credit, not head of household or EIC. (See the split exemption post if you don’t know what I’m talking about.)

44. Okay Lary,
    But I did have to ask where the kids live (or who they live with) because so many documents say 50/50 even though it’s not. So you’ve really got the 50/50 situation.

    But, the divorce decree states that you get the dependency exemption and that your ex should sign the 8332–that implies to me that they are giving your wife the custodial claim in the decree. Of course, that might not be what your attorney meant, but since you have exactly 50/50 custody and your wife is ordered in the decree to sign the 8332–then it looks to me like she gets the head of household designation (and EIC if she qualifies) while you get the exemption and child tax credit only.

45. By court order, NCP can claim my son even years if current with child support. Child lives with me fulltime.
    Child support is collected and disbursed to me by state enforcement department.
    The department intercepted his tax refund in November, which they are holding for 6months, and they don’t guarentee full payment. NCP refuses to release payment sooner even though it is an option.
    So I haven’t received over 1/3 of 2012 child support. NCP and Department say that support is current.
    Do I have to release the exemption?

46. Thank you for the response but I do not understand your question “where do the children really live?” I indicated the “children alternate weekly between parents”. There is “no primary custody” so there is no primary residence. They “live” with each parent in separate residences.

    It is my understanding the IRS only recognizes “The custodial parent as the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.” regardless of primary custody/primary residence being specified in the decree. I would interpret that “who” the children live with trumps “where” the children live.

    Yes. I am in one of those rare relationships where the kids really live with me 50/50″.

47. Hi Lary,
    So my question is: where to the children really live? That’s a valid question. Your decree says that they alternate weeks. You know how many of those I’ve seen that said “alternate weeks” but really the kids lived with either the mom or the dad. Seriously–divorce decrees that spell out where the kids stay are sadly a joke, and the IRS knows it.

    So, where do your kids live? Are you in one of those rare relationships where the kids really live with you 50/50? Are you able to legally claim them as living with you? If the answer is yes, then you don’t need form 8332. You wouldn’t want form 8332 because if would imply that you do not have custody and you couldn’t qualify for EIC or the child care credit.

    So, if you have had the children for more than 6 months (or 182 days) then you won’t need the 8332 because you are the custodial parent.

48. Hi Jesse,
    You have custody and therefore you get the head of household, EIC, and child care credits–no matter what. Your ex does not have custody so she can’t claim any of those things–even if you let her, she isn’t allowed to.
    You may give her permission to claim the children for the exemption and child tax credit, but letting her claim EIC is really fraud.

    Here’s the thing–the child care credit goes to the person who’s house the kids live in. If she has one of the kids more than half the time–well that would be a different story, but she could only claim the child care credit on the child that lives with her.

    Here’s more information about splitting an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

49. Hi Heather,
    You’re not completely helpless. First–look into your divorce decree documents. I’m guessing that they’re not going to help you because you wouldn’t be on this page, but I just want to make sure.
    It looks to me like the divorce was older since you mention the ex claiming the child in 2006–so here’s the issue: Does the decree say that your husband gets to claim the exemption? Or does it say he gets to claim the exemption if he pays child support? If the decree is contingent on him paying child support–well then the IRS isn’t going to help you. But if it just says he gets to claim the exemption–well then all your husband has to do is make a photocopy of the relevant pages of his divorce decree and mail them in with his tax return. He doesn’t need a form 8332 at all!

    Now here’s the thing–I’m guessing that your husband has “conditions” otherwise you wouldn’t be so worried. In that case–now remember, I’m not an attorney so I can’t give legal advice so you’ll need to talk to a lawyer about this but–in some states you can bring the ex back to court and the judge may even force the ex to sign the 8332. Of course, that costs.

    Now here’s another thing to think about–if you’re really up a creek–perhaps your husband (who is probably much too nice to do this, but I’m not) he might want to make paying his child support contingent upon his ex holding up her end of the divorce decree–as in, no 8332, no check. Like I said, you’ll want to talk to your lawyer about doing that because I’m not sure if that’s a legal thing to do or not. (It’s probably not.) The right thing to do would be to take her to court and have the judge force the issue. It would really be in the ex’s best interest to follow the divorce decree and sign the 8332. (Those court appearances can sure cost and do they make the losing parent pay for the court appearance? Just asking.)

    Now remember, if you do win this, your husband only gets the exemption and the child tax credit. The CTC is worth $1,000 and the exemption is worth a deduction of 3800. If you’re in the 25% tax bracket, then that’s $950. So you’re fighting over $1950. You need to know how much your fighting over before you begin the battle.

    Feeling any better yet?

50. Is it really necessary to get form 8332 from the ex?

    The ex and I reached a settlement agreement through
    mediation and our decree (after 2008) designates the following.
    1. Both of us are appointed as a parent joint managing
    conservator (no primary custody).
    2. Children alternate weekly between parents.
    3. Father pays mother $2,200 per month alimony for 3 years.
    4. No monthly child support is ordered at this time.
    5. Father has sole right to claim children as dependents and
    gets 100% of child tax credit for current and all future years.
    6. Mother is ordered to execute form 8332.

    Custodial parent per 8332 is “the parent the children lived with
    the greatest number of nights during the year” or, in the case
    of equal nights, the “parent with the higher AGI”.

    Is 8332 really necessary since, per 8332, she is non-custodial
    parent and I am custodial parent (nights or AGI), custodial parent
    executes 8332, and per decree, there is no primary custodian,
    I always get to claim the the children as dependents, and I am
    not releasing my claim for exemptions?

    Thank you.

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