I have to start with the disclaimer first: I’m an enrolled agent, I’m licensed by the Department of Treasury to represent persons before the IRS. I am not an attorney. According to the rules of my license, I am not allowed to give legal advice. But I get to talk about taxes until I’m blue in the face!
Why the disclaimer? Because if you’re a divorced parent, you may have to deal with a court order that outlines who can claim your child’s tax exemption. But the IRS has its own rules about who may claim a child’s exemption, and sometimes the courts and the IRS don’t agree.
Here are the IRS rules:
- If your divorce decree went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree to the tax return to claim the exemption as long as the decree has no conditions (like paying child support) instead of requiring the custodial parent to sign a form 8332 (release of exemption).
- If the divorce decree or separation agreement is after 2008, then the custodial parent must sign a form 8332 for the noncustodial parent to claim an exemption.
Can see how this can be tricky? If you don’t sign the 8332 form , and your ex doesn’t have the proper divorce decree documents, then your ex doesn’t get the exemption as far as the IRS is concerned. You’re going to win this one on the IRS battlefield. You may have to take it to the battlefield, but if you do then you will win.
But what does a person do when there’s a court order for her spouse to claim the exemption on the children, but the husband has no right to claim the children as far as the IRS rules are concerned? What do you do if a local judge says, “You’ve got to let your ex husband claim your children for taxes? I order you to sign the 8332 form.”
I spoke with a local attorney about what could happen to a person who followed the strict IRS rules and claimed the children’s exemptions for herself when the divorce decree allowed the spouse to claim – the answer I got was to have the person call her attorney. You see, the IRS rules are all about how the IRS will settle the issue. I’m an expert at how the IRS will settle the issue. But if you’re dealing with a court order, and if your ex decides to take you back to court to enforce the exemption rule, and you defy a court order to allow him to claim the exemption, then it’s quite possible for you to see the inside of a jail cell. I don’t want anybody reading this blog to wind up in prison. So even though you should win a tax case, you should really talk to your attorney before you go against your divorce or custody decree. Make sure that you’re within your rights in your jurisdiction.
If you are the custodial parent and you are required to let your ex claim your children, remember that the exemption only includes the exemption and the child tax credit. As the custodial parent, you keep the Head of Household designation, the Earned Income Tax Credit (if you qualify), and the Child Care Credit (if that’s relevant.) See my post about splitting a child’s exemption: Split Exemptions
If your ex claimed your child and shouldn’t have, read my post, “My Ex Claimed My Kid” for tips on how to fight back: My Ex Claimed My Kid
Divorce is tough on everyone. It’s really tricky when you’ve got federal and state rules that don’t always mesh together either. The bottom line is that the IRS does not want to be involved in domestic disputes. If your divorce decree says that the Dad will pay child support and claim the exemption while Mom has the custody, then the IRS does not want to get involved in whether or not Dad paid that child support. That’s why the IRS rules are the way they are. Basically, they’re kicking that issue back to the local jurisdictions. If Dad wants Mom to sign the 8332, then his child support should be paid up to date. If Dad’s done everything right and Mom is still refusing to sign the 8332, then the IRS is saying it’s not their problem – Dad can go back to court and work it out from there-locally.
We used to have a saying when I was a kid: “Don’t make it a federal issue.” I don’t remember where we got it from, probably some TV show. I just remember we just always used to say it. But that’s kind of what the IRS is saying to divorced couples claiming their kids today, “Don’t make it a federal issue.”
If you’ve got a situation where the IRS rules and the court rules don’t line up, do consult your attorney about how your situation can, will, or should be handled.
_______________________________________________________________________
Here are some links that might help
EIC questions of any kind: EITC Help
How to find free tax preparers: Free Tax Help
How to find your local IRS office: Contact Local IRS Office
Hi Valentine,
Paper filing is the proper next step. You’re doing the right thing and you will win the case, but it will take time and yes, it’s insanely annoying.
The Treasury Agents with badges probably will not go after your ex–they don’t get involved unless the fraud is over $40,000–and the refund your husband got is less than $40,000.
So, in the mean time, you need to keep your chin up. Keep fighting. Keep doing the right thing. I suspect that you’ll probably have to deal with this issue again and again.
Make sure that you budget your money carefully. Don’t count on getting your refunds in a timely manner. You will get them eventually–you just won’t get them on time.
I have had sole custody of my child for the past 6 years, My ex was supposed to go threw classes and a re introduction process in 2008 when the divorce and custody order was finalized. The judge which has now been disbarred for other reasons ordered that Each year the tax credit will alternate. There was nothing else placed on there about it. The first two years I was told by the IRS that the judge does not supersede the federal law and the federal law states which ever parent has the child the most out of the year is the one that receives the tax credit unless the custodial parent signs the 8332 which I haven’t I was told to paper file this year after a e file rejection occurred. My ex filed for her but hasn’t been around her or even called in over 6 years. What is the next step? I understand my rights but I want this man prosecuted for fraud being this isn’t the first time he’s done something like this. He still had some of my personal information from when we where married and he ordered under my name with his new wife over 6000.00 in pornographic and children’s magazines which I had to pay because I couldn’t afford another lawyer. I have mailed my paper taxes in what is next what can I do.
Thanks for all the info Jan! Seeing my attorney tomorrow just to review all and be prepared. I really appreciate you taking the time to answer these tax questions.
Hi MJ,
You’re right. If your ex wants to claim your son, you’d have to sign the 8332 form–but you’re not going to do that.
So what happens next?
This year, it seems like the IRS has been holding onto the returns of divorced parents, waiting to see what claims come in. Usually, the parent that files first gets the refund, and then the other parent would have to paper file to complain. Right now for you its, wait and see.
If you do get a notice from the IRS–you just prove to them that you are the custodial parent–which you can do.
You will win with the IRS. If your ex takes you to court–well, you’ll need to talk to your lawyer, but it seems that your ex violated the divorce decree in the first place so what’s he suing for?
If he takes you to court, you’ll need to contact your lawyer of course. That’s out of my area.
As far as your dealings with the IRS are concerned–you’re on solid ground and do not need an attorney for them.
Hi Jan,
MJ again from previous post Feb 2 and 10 above. Well I took your advice to ‘go for it’ and I claimed my son as an exemption on my 2013 tax return. According to the IRS I’m the custodial parent. My son lived with me for all of 2013 and I provided significantly more than 50% for his living and college expenses. Our divorce agreement, as I stated in detail on Feb. 2, 2014 above, states that we alternate tax years to claim our son. This would have been my ex husbands tax year to claim him for 2013 but he barely provided for him. Our divorce agreement , from 2009, also states that he provide 50/50 and he has never done so. I let my ex know that I was claiming our son this year and he responded stating that I could not do that and that he would claim our son and not sign a release form for me to do so. I don’t understand how he could claim him without lying on his return and saying that our son lived with him when he did not. I’ve already filed my return and I believe that I would be the custodial parent who would have to sign the 8332 to allow him to claim our son. I don’t want to have to do that. How does the IRS make a determination if he also claims our child? What happens next? Is it time to see my lawyer? Trying to avoid costly lawyer fees but I don’t want to get in trouble because of the divorce agreement. I do feel that I would win on all accounts because my ex has never complied with the other aspects of our divorce agreement to provide 50/50 for our child’s expenses. Thanks for your reply!
Hi Sheila,
I’m sorry but the ex might try this again. The IRS has been really working on this and trying to stop it. I have to give them credit for that. But that doesn’t necessarily mean that the ex won’t try it again. I have another post http://robergtaxsolutions.com/2011/01/my-ex-claimed-my-kid-now-what-do-i-do/
where several people have complained about that happening year after year.
You know you’re in the right, you know you will win. But I think you should never count on your refund being on time, at least not until the IRS figures out a way to prevent repeat offenders from claiming kids they shouldn’t claim. They are working on it, and they are getting better. But it’s not perfect yet. Sorry.
Me husbands exwife claimed his kids even though they were only there for 2 months. She knew that she could not do this. Also, she has been on probation for fraud before in another matter and is currently on probation for assault. She has been claiming the kids also for food stamps even though they lived with us. Will the justice system do anything to her now? She is also in here in the USA in a visa. I know we will still get our income tax return because we have all of the documentation to prove we supported them for the 10 months they were here. The orders for them to live with her are temporary orders which we will be going back to court to bring them back over here next month which means they lived there but not long enough for her to claim them. Could she do this again?
Jan,
Thank you for all the clarifying information and advice!
Hi MJ,
Since you are the custodial parent, you are able to claim your son for the head of household filing status and for the Earned Income Tax Credit if you income allows that. Now if your ex is going to claim your son for the exemption–then you sign the 8332 to allow that. Here’s a link to a post about how to claim one child on two returns: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/
About the 1098T–first, if you want to claim education tax credits, then you MUST claim the exemption for your son. So splitting the exemption with your husband is not a good idea if you can get the American Opportunity Credit.
Now–sorting through the tuition billed. Yes you can do it. I’ve done if for clients before. You’ll want to document everything. You may need to go back and amend last year’s return to show exactly what was paid then too–because you’re dealing with payments crossing over in various years.
What I do is use the worksheet function in the software–and I list out everything. Everything! If you don’t have that worksheet capability, I suggest you make an excel spreadsheet and line item all the payments and bills for the time period. Then remember to attirubute those scholarship payments that aren’t to be used for 2013 on the 2014 tax return. You won’t be able to submit the excel spreadsheet with your tax return, but you’ll have it as back up in case you do get a letter from the IRS.
Hi Jan,
Well seeing Carmen’s post and situation makes me concerned about claiming my son for a tax year that technically my ex-husband is entitled to per our divorce agreement. Even though my son did live with me full time for the 2013 tax year and I contributed significantly more income to his expenses. Your recommendation was to ‘go for it’ (posted on Feb 2, 2014 above) and that I’m the custodial parent in this situation. If my ex also claims our son In this situation will it only be my ex who would be asked to sign a form 8332?
I also have one more question, on my son’s 1098T from his university box 1 states that he was billed less tuition expenses than scholarships and grants received in box 5. He was actually billed more in 2013 in tuition and related expenses than scholarships and grants received. I called the university accounts office and they tried to explain that this is often the case, that the tuition billed is less than scholarships and grants, due to when the scholarships and grants ‘go through’. This is confusing and also prevents me from being eligible for any education credits (a $3000 difference in my refund). In actuality he was billed over 10K more than scholarships and grants received in 2013 and the billing statements show that. My question is: do I report the 1098T tuition billed amount or the actual amount of tuition billed in the 2013 year? Are there rules to override the 1098T for this reason? Otherwise we miss out on the education credit for an entire year which seems unfair. Thanks for your reply!
Hi Carmen,
You’ve got a court order to sign the 8332. You sign the 8332. That only releases the exemption and child tax credit, not the EIC.
Amend your taxes and pay back any money you weren’t entitled to. Here’s a link about splitting an exemption: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/
Please help! My support order states “Mother and father shall each claim one child for tax purposes.” I claimed both, because the IRS rules stated that I was entitled. I have received an order from the court to sign the form 8332 within 10 days. I have already filed and received my refund. What are my options?
Hi MJ,
As far as the IRS is concerned, you are the custodial parent and you have the right to claim your son and if your ex-husband wants to claim him, he’ll need a form 8332 signed by you. I say go for it.
Hello,
So glad there are forums for these tax questions, thank you! I am divorced, as of June, 2009. My ex-husband and I have a 20 year old college student child. Our divorce agreement, as of 2009, as regards to filing tax returns states: The parties shall alternate claiming the minor child on their Federal and State tax returns. The parties may, however, agree to a different allocation of the exemption in order to maximize tax consequences on an annual basis. Our divorce agreement also states that we share equal responsibility to our child , sharing 50/50 financial responsibility. My ex-husband has never shared 50/50 for living, medical or college expenses for our son. My son lived with me full-time, when home from college, for all of the 2013 tax year. His father rented our son’s room in his apartment and now my son chooses to live with me full time. He, essentially, is not providing. Each year since the divorce I have provided the health insurance coverage for our child and all copays and medical expenses related without any contributions from my ex. In short, my ex-husband has never complied with the divorce agreement in terms of 50/50 support or anywhere near it.. He is now unemployed, again, and is not contributing to our son’s expenses at all. 2013 would be the tax year that my ex-husband could claim our son on his tax return, according to the divorce agreement. My question is, can I legally claim our son as a dependent for 2013 because I am legally the ‘custodial parent’ as far as the IRS is concerned? I would attempt to ask my ex if he would agree to my claiming our son for the 2013 tax year but he is most likely going to deny it if given the chance. Ethically and morally it is inappropriate for him to claim our son as a dependent at all. This may be a question for my attorney but I thought I would ask you to begin. Many thanks for your reply!
Hi Bradley,
If I’m reading you correctly, you are in the right. You had more days so you get the EIC and head of household–your ex–because it’s an odd tax year, gets the dependency exemption.
EIC is not part of the divorce decree, only the exemption is. I suspect the your decree was rewritten with 50/50 physical custody so that EIC would also be alternated–but you win on the days.
I suspect your ex will try to fight you so document, document, document. Clearly, you’ve kept track, that’s the right thing to do. Just don’t be surprised if he’s fighting you on this. (But it sounds like you’re ready.)
Hello, I have a question. My daughter is 13 and I had to take my ex to court for joint physical custody in 2011. We previously had joint custody, but apparently that only meant joint legal custody. We have her an equal amount of time and alternate holidays and the worksheet for child support drawn up by her attorney gives me 183 days per year and gives my ex 182. We are ordered to alternate dependency filing years. I get even years and she gets odd years. The court order says nothing about who claims earned income tax credit for her. It just so happens that the visitation fell in my favor for 2013. I had her 190 overnights and she had her 175 overnights. It will fall in my favor again for 2014. This is due to the holidays that I received. Am I allowed to claim the EIC even though I am ordered to let her claim the dependency for my daughter? I have already submitted my return, but it has not been processed yet and my ex is mad because I claimed the EIC for her. She says I cant do that. I did not claim her as a dependent or take the child tax credit. What should I do and can she take me back to court to have the EIC factored into the decree.
Hi Lorie,
I wish I had better help for you. It sounds like you’re making the right decision for your family. Good luck.
Thanks for the info Jan! There are no conditions to his claiming my boy every other year listed in the court order. I could realistically take him to court for not upholding the order as it also states that he will see his son every Tuesday, Thursday and every other weekend and has only seen him 4 times in the last 2 years. My problem is my son is doing much better without seeing his dad and I don’t want to risk forced visitation. (My boy is emotional enough about all this and has heen dealinf with self esteem and anger issues for years.) His dad knows that I dont want that and he uses it against me/us. I am going to call the child support agency about his not paying for the last 2 months after Jan is officially over and he still hasn’t paid. I will ask about a collection order to get the money from his taxes. I tried to be nice about it and go to him to be civil. He has another kid with his new wife and she has 4 others, so they have plenty of exemptions, but he won’t give us anything. I know he would take me to court to force the issue if I claimed my boy and I cannot afford a lawyer to fight him. I fear for my son’s safety with them as she was in jail for trying to burn their house down and had child abuse restraining orders filed against her for her own kids. Guess I’ll just leave it be. I don’t want my son to suffer for a few hundred dollars. I know I can claim HOH and EIC. I will get what I can that way. Again… Thank you!!
Hi Lorie,
I need to tell you that I’m not a lawyer. I can’t tell if if you’ll go to jail or if the judge will force your child to go see his dad.
I can talk about taxes.
Number 1: Even if your ex wins and gets to claim your son on his taxes–he only gets the exemption and the child tax credit. That’s what it means for him to get the exemption. You are still eligible for head of household filing status, the Earned Income Tax Credit, and the child care credit, if you qualify for any of those.
Now, back to the divorce decree. Does it have any conditions? Does it say he has to pay child support in order to claim the exemption? If there are conditions, that gives you something to fight with–because if there are conditions, then he can’t use the divorce decree to file his tax return. That’s were you go into negotiations–“Ex-honey–if you pay your back child support, I’ll sign the 8332 form.” See what I mean?
If your divorce decree has no conditions–then he’s going to get the exemption–which includes the $1000 child tax credit.
But–here’s the thing. He owes back child support! Is there a collection order out on him? Because if so, then the IRS will levy his tax refund if he gets one and you’ll get that money will go to you. So make sure that the court knows he hasn’t been paying his child support.
Ok I have a question… divorce was final in Sept 2008. Court order says that the ex gets to claim my son every other year. I tried to fight it at the hearing bit the judge shot me down. I have been lettjng it go but the problem is that he hasn’t spent a single night at his dads in well over a year, his dads wife just got out of jail after about 6 months, he hasn’t paid child support in over two months, he has moved for the second time in about 6 months and he isn’t answering my tests. Can I claim my son without worrying about having to go to jail or my son being forced to go see them?
Hi Amber,
As far as the IRS is concerned–you have custody and you can claim your kids. That said, there’s a court order saying that your ex can claim one of them. You win with the IRS, but that doesn’t prevent your ex from taking you back to court and forcing you to sign the 8332. But you’ll have to talk to a lawyer about the odds of that happening. Depending upon where you live, it may or may not happen.
That said, you get $97 a week. That’s $5,044 a year. Not much, but the value of your son’s exemption is $1000 for the child tax credit and maybe a little more for the actual exemption. You still get to keep him for EIC purposes if you qualify for that. So, letting your ex claim your son is probably worth less than $2000. So, is it worth trading $5000 for $2000? I mean, if he has no contact whatsover, it seems to me his only thing he gets out of the kids is an exemption — if he doesn’t get the exemption, why pay the child support? Oh–you’ll take him to court if he doesn’t? But you’re the one violating the agreement? See where I’m going with this?
So, yes you win with the IRS–but is it worth it?
I was divorced in December of 2009. My ex filed a motion on Feb 26 2010 and it state he can claim oldest child for federal and state tax purposes. The judge granted it. I was not present nor did I agree to this motion it was a phone hearing with lawyers and judge.my question is for him to be able to claim child would I still have to sign the 8332 form? Since its after 2009 we were divorced and order was in 2010 from county court. I am the custodial parent and keep in mind he has not had visitation nor seen the children since 2010 only pay $97.00 a week in child support for two kids, no other form of support. I have claimed both children since then because I called irs and asked what to do and they said I am to claim irs is federal courts and the over rule county judgments in this matter and I meet all the requirements to claim both children. but I have received letter from irs saying I need to make sure someone is my dependent because obviously my ex is claiming one son also because of the motion from 2010.
I am confused after reading all the answers and questions above about the form 8332 and court rulings of who can claim the kids on this matter. So am I ok with claiming both kids since its after 2009 when motion was granted for ex to claim son for federal and state tax purposes and I have never filed out the 8332 form form ex to claim our one child?
gythhhhhhhhhfythuyhfffffgut
Hi Morgan,
You’ve got an excellent question. The IRS will only let the custodial parent claim the daycare credit. Quite frankly, that makes sense–as only the custodial parent needs daycare. So, I would claim the daycare credit. It’s probably easier to work it out with your ex than it is to go back to court.
Remember, when your ex claims your child, you still get to keep the head of household designation and if you qualify for EIC, that’s yours too. The non-custodial parent only gets the exemption and child tax credit. Make sure you check out this blog post also: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
My divorce papers state that my ex and myself alternate claiming our son every year, but it also states who ever claims our son can claim daycare expenses as well. I am the custodial parent and everything that I have read so far states he isn’t able to claim that child care, only the custodial parent. So I am curious do I go by the court papers or what the IRS says.
Hi Alexia,
You want to do something called “innocent spouse relief”. Here’s a link that explains it: http://robergtaxsolutions.com/2011/03/injured-spouse-relief/
This way, although any refund that is due just to your husband will go towards the back child support, the refund that is attributable to you and your children will go to you. It’s usually better to do that than to file separately–but you might want to run the return both ways to make sure. When you’re filling out the forms–you say the children are your dependents–even if they belong to both of you. Good luck.
My husband is currently paying back pay on child support to his ex wife. My ? Is how do we file since he claims me and my two children? Don’t want my kids money going to her and he’s the only one working? We have made a tax return together before but the ex decided to say he wasn’t giving his kids money which he was but we don’t have proof…bummer…
Hi Christina,
I deleted your last name from your post. Here’s why: although I don’t think you meant it this way, what I’m seeing is, “I’m going to ignore my court order and claim my kid’s exemption anyway.”
Like I said, I don’t think that’s what you meant. I think you meant that you didn’t realize that as the custodial parent–you could claim your child for head of household purposes and for EIC, but that you’d still have your ex claim her as per the rules in your court ordered divorce decree, right?
Here’s a few things you need to know: 1. you don’t have to sign the 8332 for your ex to claim the exemption–your divorce decree is old enough that he doesn’t need it. All he needs is the decree.
2. If you intend to claim your daughter for EIC and head of household purposes, make sure you let your ex know. He might not realize that he’s not entitled to the head of household or EIC designations and if he doesn’t release that part of the exemption on his tax return it could result in you both being audited.
3. Since you’re going to be splitting the exemption, you should both read this post about how to do it: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/
4. If claiming your daughter for the head of household filing status and/or EIC makes a difference for you, you can go back and amend your prior year returns and claim it there too. You ex might not be happy, but it might not even hurt him–it’s worth discussing. You may go back for three years, so you’ll have until April 15, 2014 to go back as far as your 2010 tax return.
My divorce decree is from 2004. All it says as far as the exemption is “Dad will get the exemption.” It also says that either party has a right to buy the other’s exemption, or something like that! At any right, our child lives with me and I am the custodial parent. I have since learned about the form 8332, which I have never signed. I plan to claim our daughter this year, but I really don’t want to get into trouble. He’s claimed her for 10 years now. I’ve not claimed her once, and she lives with me!
Thanks!
Christina
Hi Dad,
It seems to me that you’re solid on the child tax credit as that’s what your divorce decree states and it pre-dates 2009. You ex is also entitled to claim your child–as the custodial parent–but not the exemption– only the head of household and EIC (if she qualifies.)
This is a little grey, I’m saying that the child tax credit is in the divorce decree and nothing has changed there. Your ex’s attorney is claiming that the change in the nights changes everything. You could very well be at the mercy of the IRS agent handling the case.
Personally, I’d side with you if I were reviewing it. I also think that if you do lose, you’re case is strong enough that I’d appeal if they do side against you.
What you two should be doing is the split exemption. Here’s a link about that: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/
Maybe if your ex understood about that, she wouldn’t be arguing with you. (Maybe?)
Thank you for dedicating your time to this blog! I hope I’m right in what I have done, but if not I will take it like a man.
My ex-spouse and were divorced in 2002. Our separation agreement spelled out who would take the child tax credit that year and then alternate there after. I would get even number years and she would get odd numbers. We continued alternating until 2012 when my electronically filed returned was kicked back because someone else was claiming my child. We had never used form 8332 form and our relationship had soured recently so I knew she would not amend her tax return or sign 8332. So I followed the IRS rules for pre-2009 agreements and attached a coversheet explaining the situation with my ex-spouse’s SSN. I also attached the pages from our agreement that showed the alternating years and our signatures. I received the tax credit when my return was processed.
Now, this week my ex-spouse and I both received a letter from the IRS stating someone has claimed our child and that one of us will need to amend our tax return. My ex-spouse (who works for an attorney) says she can now claim every year because we modified our parenting agreement to where she has more overnights than I. No where in the agreement was the child tax credit changed or even mentioned.
So she is not going to amend her taxes, we both will be audited, and she said she will sue me for her time spent with her CPA. Should I just amend my taxes and let her win or let the IRS make the final decision.
Thank you so much!!
Hi Charlene,
Hmmmmmm. Good question. I would say that the referee would be in the same category as the court. Even though he wasn’t ordered to sign the 8332, he should readily do it when asked.
The taxpayer did agree to the referee’s decision so he should not claim the children for the exemption, just for the head of household status and the EIC if he qualifies.
Now, if the mother is choosing not to claim the exemptions–then of course the father (custodial parent) should claim everything. But he shouldn’t assume that he can just because she didn’t ask him for the 8332.
Hi Jan,
This question is concerning a Referee Recommendation. The referee “awarded” tax dependency exemption. It does not state for state and/or federal taxes, nor does it state anyone is “ordered” to sign a Form 8332. Can the custodial parent continue to claim all children because no one has ordered him to sign the Form 8332. Also, can he claim all children if she does not ask for the Form 8332.
Thanks!
Hi Nicholle,
So your ex gets the exemption every other year. That’s okay. He says he doesn’t need the 8332, hmmmm. You may be right–but did you file? You should still claim your daughter for EIC and head of household filing status.
Because he gets to claim the exemption–he gets the child tax credit. But you still keep the EIC (that’s usually better anyway.) It’s called splitting an exemption. This is how you do it: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/
That’s probably what your H&R Block person meant.
Hi Yessica,
I’m thinking that you and the ex might want to negotiate a little bit. So you two have joint custody. Does your daughter live with him half the time? Really? Here’s why I ask. The court may grant the dependency exemption, but if your daughter lives with you for more than half of the year–then you get to claim her for EIC. But–your income is probably too high for EIC–but your ex is in the sweet spot to claim it.
I’m thinking that since your ex is paying child support–he doesn’t have your daughter for half of the year–I’m guessing that he has her for Wednesdays and every other weekend (or something like that.) That’s not half is it?
So, technically, he can’t claim EIC. Now you two could cut a deal. You let him have her for half the year–really, and you claim the dependency exemption and let him claim EIC. See “Split Exemption”: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
If you could agree to do that, you’d both benefit taxwise.
But let’s say you’re not willing to let him have your daughter for half the time, and he’s not cooperative. As far as the IRS is concerned, he may only claim the exemption if you sign the 8332 form releasing the exemption. If he doesn’t pay–you don’t sign.
Physical custody is the only thing the IRS cares about. So–you could just claim her yourself. Sure, he can take you to court–but he’s at fault for not paying the child support.
Now about you getting paid in cash–that’s fine as long as you’re claiming it properly on your tax return.
I can’t advise you about how to change the court order, I’m not an attorney. I can only help with taxes.
Good luck.
Hi! I hoping you can give me some info…my child’sfather and I were never married…long story short after moving out of state he took me to court to get his child support reduced and get every other year taxts, starting 2010, he never requested the 8332 I didn’t question it well for 2012 I asked him again if he needed it he said no this tax person didn’t require it…what do I do? I think he is telling them she lived with him so he can get the credits, hr block told me to file an ammendment because since I have her ten months out of the year I should still get the child tax credit, I want to call the IRS but can’t because of the government shutdown
My child support order was effective in Dec. 2012. He has to pay $10 a week, claim our child in his taxes and joint-custody. he court told me when I started working I could modify the tax part. I work part-time paid in cash, I got married and file jointly with my husband (owns 17% of company) making 33,000 a year, plus work for a subcontractor but get paid in cash. My ex has only paid me for 17 weeks, but in money order, owns me 26 payments till this day. How can I get to change the order and get to claim my daughter as a dependent. He has claim her for four years, because I was not aggressive and say no. Does it hurt me to get paid in cash as well as my husband? My ex makes $24000 yearly and is also married with a step child. Does he wins in all?
Hi Juan,
I’m sorry, I missed answering this before you go to mediation. Here’s a few things you should know though:
1. The IRS doesn’t give a flying hoot about who has custody in the divorce documents. All the IRS cares about is who is the custodial parent in reality. Where does your child really live.
If you let your ex claim the exemption, you’ll still get to keep your married filing status (which is a good tax bracket). If you have custody you may still claim your son for the Earned Income Tax Credit if your income is low enough. If your income is too high for EIC, then it won’t matter if you give of the custody for tax purposes.
Giving up an exemption is basically your tax bracket time $3900. If you’re in the 25% tax bracket, then you’re out $950 plus the $1000 child tax credit–basically costing you about $2000. At least you know what it will cost you.
My divorce finalized in 2007. I was given 51 percent custody and mom was given 49 percent. I believe it was for tax purposes. I get to claim head of household and my son every year. Now in 2013 mom is taking me back to court and asking to modify child support and on top of that wants to claim our son. She states because im married now and have anothee child. My exceptions are 4 and hers are 2.
I was told that it was in my best interest to let her claim him because my support would be less if she has him as an exception.
I have also read that if ww share equal custody then the person with the higher adjusted gross income gets to claim the.child.
Any insight that might help, I go to mediation tomorrow.
Hi Karisa,
If the IRS already adjusted your return (and if they are right) then don’t bother filing the amended return, just pay the money.
If, on the other hand, you have your amended return showing a different amount that you owe–then go ahead and file the amended. Anything to say a little money will be worth it.
Hi Confused,
Since your ex is not demanding that you sign the 8332 for 2012, I’m not seeing a problem.
But, if he does push it, remember he only gets the exemption and child tax credit, not head of household or EIC.
That said, if you ex wants to fight, he can take you to court to make you sign the 8332. So really, it’s only if your ex is going to fight you on this that you need to worry. The IRS will not look into this unless you ex pushes it.
Hi Cynthia,
You will know your ex claimed your child when he shouldn’t have if your tax return gets rejected. If that happens, you will need to paper file your tax return.
Your current husband may claim your child on his tax return because if he’s married to you, that makes him your child’s step father.
Now–this is important–if you’re married, you should be filing married filing jointly or married filing separately. If your new husband files separately, there is no EIC. Thought you might want to know that.
Hi Christina,
You need some help.
1. You separated on 3/12 and you had custody of the children. That makes you head of household, even though you’re still married.
2. Okay, so the judge let you ex claim one child–fine, let him have the one exemption. You still get to keep the child for EIC (if your income is low enough.) Your husband is still stuck with married filing separately for 2012. You, once again, are head of household.
You will paper file the 2012 tax return. You will let the IRS know that he forged your signature and that you did not file jointly with him.
This is going to be a pain in the behind, but you’re in the right. Remember that. Ask your CPA if he’s comfortable with this type of fight. (Some aren’t.) I sometimes help my CPA friend when he gets cases like these. Not all CPAs are comfortable with this type of tax law.
The bottom line is–you’re in the right. Make sure you get everything you’re entitled to.
Hi Leslie,
No, your ex absolutely must have an 8332 from you, conditions or not, because your decree is after 2009.
Hi Duane,
You have custody on Tuesdays and every other weekend–that’s it. And you pay child support. So, the only way you can ever claim your child on a tax return is if your ex signs the 8332 form to release the custody for tax purposes.
Now, if she does this, you only get to claim the exemption, you will never, NEVER, be allowed to claim EIC.
The reason I’m spelling that out so strongly is because I’m thinking you may be under the mistaken impression that if you were allowed to claim your child that you would get the EIC. That’s where the big money is on a tax return–but you will never have that. Just so that’s clear.
But–if your ex releases the exemption, you could claim the child tax credit and the dependency exemption and she could keep the EIC. If she knew that, she might be more willing to release the exemption. It’s worth talking to her about.
Hello, I would like to start by saying that you have a great q&a here. My question is this: my son is 5 years old and was born March 25th 2008. his mother and I knew it wouldn’t work between us the whole time she was pregnant but I was there anyways through all of the birthing classes and child CPR and everything. she told me since day one before he was even born that we would switch of claiming him on our taxes every other year. she let me claim in 2010 on my taxes but never since because she says she has him more than i do. we don’t have any sort of court order between the two of us and I get him every Tuesday night and every other weekend. I am always up on my child support and I’ve never been behind on any payments. she told me verbally back in 2008 that I would be able to claim him every other year but nothing was ever put into writing. what can I do I’m not a deadbeat dad and finances are tough even for me too. please help.
I will be the one to file the ammended tax return….we have worked some things out, but I recieved a letter from the IRS saying that I owe basically all the tax return that I recieved that year, they basically just cancelled out ALL my deductions. It is just like I am starting fresh I guess?? Will they even accept my ammended return?
I am completely terrified!!!
Hi Karisa,
You were divorced in 2010. You moved out in September. You had an agreement that you would claim the boys but now you’ve gotten a letter from the IRS saying that your ex claimed one.
First thing I would do would be to talk to the ex. I’m guessing that you should have claimed the boys for EIC and had him claim them for the dependency exemption, but that you two did it wrong.
That said, if you’re fighting about how it should be–you’re going to be the loser because the boys address is at your ex’s house. That’s where you’ll lose the case. So my best advice is to work with your ex because it’s quite possible that the situation could very a win/win for both of you–if you work together.
Hi SLC,
You and your husband have the kids for 128 days. You don’t get the EIC. Sorry. You did get the child tax credit–that’s right, because your divorce decree gives you the dependency exemptions.
Now, your ex and his mother have the children more. Normally you would say that neither of them could claim the EIC, but you mentioned that the kids sleep at his mother’s house because of his job. The IRS makes an exception for people with night jobs–and so it would seem that the kids actually are with your ex for more days than with you.
Even if they’re not, you still don’t have them for over 6 months so you don’t get the EIC. And keeping your ex from claiming it would keep the money away from the care and well being of your children, and I don’t think that’s what you want. Sorry.
Hi Jo,
Your ex no longer has custody and you went to the IRS because he claimed your daughter. You won. Now he’s threatening you with lawyers.
Ahem, let me repeat this one important part: YOU WON already on the tax thing. He abused your daughter. YOU WON.
So as far as the IRS is concerned–you win. You will always win with the IRS because you are the custodial parent.
Now I’m not an attorney so I can’t give legal advice. You’ll want to make sure that you do have access to an attorney just in case the sleazeball decides to try to take you to court. But from an IRS tax standpoint, you’re okay to claim your own daughter on your tax return.
Hi Layla,
Your husband has four childrend with his ex and all four children live primarily with him. His court order allows him to claim two and his ex claim two. You want to know what happens if he claims all four.
Well–that’s a violation of his court order–so depending upon what state you’re in, he could have some problems. I’m not an attorney so I can’t comment on those types of problems–so let me talk about taxes.
First, as it stands, by allowing his his ex to claim two of the children, he’s missing out on $2,000 worth of child tax credit and whatever the value of claiming the exemptions is worth to him.
Since his ex and her husband have no income, there’s no child tax credit for them–so I’m guessing they must have some income, otherwise they wouldn’t bother to claim the kids.
If the decree is after 2009, he would have to issue his ex an 8332 to allow his ex to claim the children. If he didn’t–the IRS wouldn’t have a problem with him, but he’d still potentially have to deal with the court and I’m guessing you don’t want that.
If the ex really has no income for tax purposes, it might make senses for them to sit down and talk about “what’s best for the kids”. Now, from the tone of you post, I’m guessing she’s not the type to do what’s best for the children, but you never know, she may just surprise you.