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 Loren,
for 2015, you still let your husband claim the exemption, but you claim your child for EIC and the head of household filing status. It’s a win/win situation for you both. Read this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
Hi Chris,
Do you want the mean Jan or the nice Jan answer? Your ex kind of made me mad so I’ll give you the mean Jan answer first: Tell her that extortion is against the law and that you’ll haul her behind back to court and have the joint custody agreement removed.
Okay, that wasn’t very nice. Sorry. Also, I’m not a lawyer so I can’t say things like that anyway. Here’s my nice Jan answer. Read this post: http://robergtaxsolutions.com/2015/01/tax-strategy-for-exes-that-get-along/
Now, if she’s willing to work with you, you two might work out something that’s good for both of you. And good for your daughter.
Now, it sounds like you and your ex don’t get along. So if she’s going to fight and she has more days–then you still get the exemption, all she gets is the head of household and EIC. So if you fight–that’s where it will fall. But, you might have to take her to court to enforce her letting you claim the exemption. Sorry.
Modifying my last comment, I don’t have an attorney now, that was when he was granted the exemptions in 2006.
I have a long history of fighting/adjusting agreements that was last modified in 2006 just after I had to get a protection order against him. I had to laugh at your prepare for battle comments.
I have read many times about a court order that states who can claim the children and I understand because our last modification was pre-2009 he only need the court papers. My confusion comes when the IRS rules say things like “the non-custodial parent can claim the child as a dependent without regard to any condition, such as payment of support.”
He was behind in 2007, I told him I was going to claim them and did. He was behind again in 2010 and I claimed them without notifying him. Let the battle begin. The document form the court sates he gets to claim them with me getting EIC (My husband makes to much). I never bothered to return to court as he is often behind. I claimed again another year and now the IRS decided to back peddle to 2010 and we have been swapping papers with the IRS for 2 years. They even denied my college students dependency and his T1098 and they want receipts for the tuition, which are mostly loans. Apparently in the 30 plus papers proving support I forgot the divorce decree.
I began to think they were just trying to wear me down. Do I continue?
Was I correct to claim the kids or does the document have to state I can claim if he is behind? My attorney said I could but I am struggling finding the written support for that and the IRS statement implies it has to say he can claim regardless of support which our paperwork does not. Is there some special amount he has be be behind? 6 months, 3 months, 1 month?
I guess I want a little assurance as they have now quadrupled the interest and penalty now that we turned the corner into another year.
Forgot to mention that for 2015 I am working.
Hi,
In my case the decree states. Husband has the right to claim the IRS fed exemptions for the children unless there is a conflicting Federal Income Tax ruling or regulation.
I didn’t work for the year 2014 for I was studying, I payed like 3000 on summer camps to keep working, and I am thinking for the 2015 I should try to claim them as my dependents, since they are with me 90% of the time.
What is your recommendation? Is what the decree says enough for me to be safe and try claiming them. If you have someone in tx that you recommend don’t hesitate to tell me
I signed the form for 2013 for him to claim them. After your post I will sign it for 2014 since I won’t benefit from it.
Thanks!!
my ex wife and I divorced in 2011. We both have joint physical custody of our daughter. In our divorce papers it states that I am to claim our daughter on even years and she is to claim her on odd years. I have our daughter every Tue and Wed and every other Fri Sat and on the weekends she is with her mother she come back home to me on Sun night and vice verse. Her mother has her on Mon and Thu every week and every other weekend and Sun night when it’s been my weekend. Our time is split equally. She has made the comment that if I don’t give her $1,000 of my tax return then she is also going to claim our daughter this year which is my year to claim her and the IRS will side with her. H&R block has said that there’s really nothing I can do but wait to see what the IRS says. If the ex can prove that she has had our daughter even one day more than me then she will get to claim her. Is this true and if so do I have any options?
Hi Confused Mom,
I would love to do your taxes. You can contact me through the contact page.
That said, you can find somebody local also (and my feelings won’t be hurt.) Because you sound like you could really use having a real live person to talk to while you’re doing this.
For what it’s worth, it’s very normal for the judge to award the exemption to the non-custodial spouse to be claimed every other year. Don’t feel like you’ve done anything wrong or that it’s some kind of punishment. It’s pretty much standard operating procedure.
For what it’s worth, claiming the exemption will get your ex $1000 for the child tax credit and will save about $900 more from claiming the deduction If you had no income for 2014–you wouldn’t get the $1000 and you wouldn’t benefit from the deduction. I realize that doesn’t help much, but knowing that you’re not losing anything may take away some of that nausea.
(And if you had low income–you still get EIC, so it’s not so bad.)
Fresh out of divorce court and feeling baffled. This was the only site that I found informative and partly calming. I am confused and sick to my stomach that the judge allowed my ex to alternate years in claiming our son? He sees his son 20 hours a week. How does he get the privalage to claim him when I am the major custody parent? Is this because he makes more money than me? It was calming to read that I am just losing the “dependant” claim, but not the exemptions. I don’t want to fight about this or should I? I haven’t received a judgement on how much money I will be receiving for child support and my ex gets to claim him for last year because he supported me financially due to the fact that I was a stay at home mom. Being a former teacher for the past 12 years, I depended in any tax exemption. I will research EIC and claim head of household. But like I said, I’m confused on this ruling, but am more calm with your informative content. May I hire you to file my taxes 🙂
Hi Dad of 3,
Well, the first thing, if you haven’t remarried, is to claim your daughter for the head of household filing status. I realize you’ve still got other kids so you don’t need to, but if you click on the right boxes when you’re efiling, that information will still go to the IRS.
But, it doesn’t help if you’re married filing jointly, and it still might not help as you have other children, the IRS might just ignore it.
One more thing is to give her the 8332. She may be dumb enough to take it with her to her tax preparer. The thing is, when we see the 8332, we know that person doesn’t have custody and can’t claim EIC. (I know, that sounds lame, but it might work.)
But you may just have to file a fraud form. Here’s a link about reporting fraud: http://robergtaxsolutions.com/2010/11/how-to-report-tax-fraud/#comments
The thing about reporting fraud is, you never know what happens. The IRS won’t tell you and let’s face, your ex won’t either.
Good luck.
Hi Arlene,
So you know I’m not an attorney, you know it’s against the law for me to give legal advice yet you ask my opinion anyway?
Arlene, you’re being hauled into court for contempt of a court order to allow your ex to claim your son’s exemptions as long as he is up to date on his child support.
You publicly admit that you claimed your child’s exemption after the judge ordered you not to.
Now, you’re okay for the year that you only claimed the EIC and head of household, but for the years that you also claimed the exemption–you done did wrong.
You lost the child’s exemption with the 2010 court order.
My oldest daughters Mother and I have a court ordered parenting plan that states that she is able to claim our daughter every other year. I have legal custody, my daughter lives with me full time. I just found out through mutual friends that the Mother is claiming the earned income credit on her years, which is illegal because my daughter doesn’t live with her…? My income is too high to claim the EIC credit. Can you explain to me what I can do this filing season to ensure she is unable to claim that EIC credit? What steps do I need to take when filing?
Hi,
I have read through all the posts on here and the majority relate to divorced individuals and the requirement of one parent (custodial) to sign over the exemption on the 8332 to the other parent. Not really finding what I am needing to know.
I was never married to my 2 children’s father, and when support was set in 2000 for our oldest and then in 2002 for youngest, I was granted custody and the support order(s) never mentioned anything about tax exemptions for either parent and remained that way until 2010 when he petitioned the courts for the tax exemption for one of our dependents (namely our oldest). I had always claimed both children every year with no issues from him. As I stated, in 2010 he petitioned the court for the right to claim our son. Unfortunately, I missed the hearing date due to a death in the family out of state. (My fault). The outcome of the hearing resulted in him getting to claim our son – specifically stated as “that the respondent be entitled to the tax exemption on behalf of (minor) each calendar year so long as respondent is substantially current in his child support obligations as of the end of the respective calendar year”.
No where in the order does it state 1. when it was to begin and 2. any mention of me submitting a signed 8332 to him. Since this was ordered in Nov. 2010, and I already had my taxes during the year based on claiming him, I claimed him that Jan. of 2011 for tax year 2010. The following year I also claimed him (2011). 2012 he claimed him (with out signed 8332) and I also claimed him on an amendment to my taxes that year. 2013 I only claimed him for the EIC and child tax credit, and nothing else, but still have not signed an 8332 giving consent to his dad. Since the court order did not state the requirement of the form, am I really in the wrong? Mind you I did petition the court for an appeal within the 30 days allotted, and I was denied without reason. Also, the judge that had issued the order retired the next month. Under all rules of the IRS, I should get the exemption ( He lives with me for more than 85% of the year, I have the higher AGI, and I provide 55% of the support for both children). We have a court date coming up in a week or so for contempt on my part for not signing the form. I feel I am in the right, but still have some doubt. Can you shed some light on this for me? And yes I have kept in mind that you are not an attorney and cannot give any legal advise :).
Thank you,
Arlene
Hi Beth,
Aw, your poor little ex didn’t get his way and wants to go back to the IRS and have them fix things for him? Good luck with that.
Sorry but the IRS wants nothing to do with his little “life ain’t fair” tantrum.
Here’s the thing, all four kids live with you. What’s his beef? Even if you allow him to claim any or all of the kids, he cannot claim the Earned Income tax credit.
Now, he wants to go back and claim all those years he didn’t claim. What’s he going to claim? 2009? That’s closed. 2010? Closed too.
Let him file whatever he wants. Let him pay that tax accountant to file for him. He losses. I’m sorry I’m being so nasty to your ex but I get so tired of people who don’t take care of their kids wanting the tax deduction.
continued. Forgot to mention. We have a status conference Dec 17th but he is claiming he is calling his tax accountant before then to have this changed.
Thank you,
Beth
Hi,
I was divorced in 2009 and we did the divorce decree ourselves. We marked the deductions as far as kids incorrectly but we knew it and since then have filed as we wanted to. The 4 kids are with me 100% of the time. This October the ex filed with the court to change many things, one being that he felt it wasn’t fair to have me do 3 kids and him 1. Now in December he’s stating to me that he is going to go back and file as the divorce decree states and get all he is owed for past years of filing. What am I to do?
Thank you-
Hi Angela,
First, the most important thing when dealing with someone whose word you can’t trust–don’t go signing any documents that give him any kind of power until he’s done whatever it is you need for him to do. But you already knew that didn’t you?
In order for you to still claim your son for EIC, then you’ve got to make sure that your son sleeps at your house at least one more day than at your ex’s. So you get yourself a calendar and you keep track. Your calendar is going to be your friend.
I cannot stress the calendar enough. There are 365 days in the year and you want to make sure that you’ve marked at least 183 days of your son sleeping in your house under your roof.
Now I may be too late to the party here but if I’m not—may I suggest that you not let him drop the child support until after you’ve successfully shared custody for a full year and he’s allowed you to claim your son on the taxes? Just a suggestion.
Hi , I have a question for you about tax issues. This year is not the problem as my child has lived with me as his primary residence up until oct 20,2014. Wants to spend more time with his dad. so we agreed to do every other week and share time on holidays. I did not change the court order. I was doing this as a trial, to see how things would go. so on paper im still primary residence. i am willing to drop child support, as long as he lets me claim him on taxes the next few years. But can not hold him to his word. I am worried about future years of claiming with out something saying i can legally.Can you help please?
Hi Jennie,
I missed your question about pre-school earlier. Only the person that the child lives with may claim the child care credit on the tax return.
Hi Jennie,
You’ve got 100% physical custody. I’m guessing that you and your husband are living apart, right? If that’s the case, then the exemption is yours. Also head of household filing status.
If you’re living together then the parent with the higher income gets the exemptions. But you’ll both have to use the married filing separate filing status (which stinks) unless you file jointly.
Remember that even if you allow your husband to claim your child as an exemption, because you have custody, you can claim head of household (and if your income is low enough EIC.) Read this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/ That might be something you can negotiate with your husband about. Good luck.
Hi Nicole,
That’s a really good question. It’s 2014 and according to your court order, you get to claim your son’s exemption for tax purposes–but you didn’t earn any income. You live with your parents, can they claim your son?
The simple answer is: yes, yes they can.
Can they claim you as a dependent? Once again, yes they can.
Do they have to claim you as a dependent in order to claim your son? No, they do not have to.
And what paperwork do you have to sign in order for them to claim your son on their taxes? Surprisingly–none. Unlike in a divorce, or separation, your parents actually live with your son. So the live with the child and they have a direct, linear family tie to him. You don’t have to sign anything to give them that right, they actually have a legal claim to him.
Granted, as the mother, your legal claim to claim your child on your tax return is stronger–but you are willing to give it up to them and that’s perfectly fine. It’s perfectly legal.
Another thing I forgot to mention is that my ex enrolled our son in Preschool because I made too much. Will that create a problem as well? Even though my son lives with me?
Hello,
My divorce with my ex is not finalized yet but in the divorce papers, I have 100% physical custody of our son and we share 50/50 legal custody. I have not signed any form allowing my ex to claim our son on his taxes. I claimed our son last year and we both did separate taxes. My ex wants to claim him this year. Our verbal agreement was that one year I would claim him and the next he would but he doesn’t pay child support and again, I have 100% physical custody and I am the primary caregiver to my son. Can I claim him this year as well? Even if he tries to?
Thanks!
My ex and I were never married. We have a son whom lives with me at my parents house. We live in Iowa and have shared/joint legal custody and I am the primary physical custody. We have a court order that says that my ex claims our son on odd years and I claim him on even years. I did not work in 2014 and therefore I’m not filling for 2014 when the time comes. My question is can my parents claim my son since we have lived with them for over 6 months, my income is $0, and they pay a majority of our expenses? If the answer is yes, do my parents also need to claim me as a dependent to claim my son? Do I need to sign/full out any IRS/court forms to all them to do so? What documentation, if any, do we need to provide?
Dear Missing Something,
Since the children live with you more days of the year, you are the one that gets to claim the children on the tax return. But you’re going to need to prepare for battle–
you see, he’s been claiming the kids all along so you’re going to be a “change”. And, if you’re using his residence for the school records, he’s going to have some ammunition.
What you’re going to want to do is make sure that you document that the children live with you. Have them on the lease, have some sort of record–day care provide, church records, medical–whatever.
You don’t need any of that to file your taxes. I’m just suggesting you get your ducks in row now because I would bet he’s going to fight you. (A soldier doesn’t go into battle without ammo, right?)
Now this is my stupid, big box tax office, advice–but sadly it’s the best advice I can give you: file your taxes early. If you file your taxes first, you’re more likely to get your refund, his return will get rejected, and he’s less likely to wage the battle since he will lose. If he files first–he’s got the money already and you’re the one waging the war.
(Okay, I shouldn’t have the TV on while I’m writing these answers. I just saw the promo for the new Brad Pitt World War II movie and my whole answer sounds like a military theme, sorry about that.)
Now, even if you file first you may still get your refund held up. The IRS has gotten better at screening returns and so they might hold your refund because you haven’t been claiming the kids. That’s okay–they’re just preventing fraud. But have your proof that the kids live with you ready so that you can show them if they ask.
Hi Jan,
Thank you so much for all of the information provided here. I wasn’t able to get my question answered so here goes.
My divorce was finalized in March 2010. We share joint physical and legal custody with a 2/2/3 split, shared holidays, etc. He designates their residence – I thought this was for school purposes and determining the neighboring counties he can move to. There is nothing in the decree related to tax exemption. We mediated out of court and I agreed to pay an amount of child support and carry the insurance – based on my income. He has claimed the kids for the past 3 years. He said because he designates the residence he has the right to??? I am not sure of this. I have filed single and had to pay taxes for the past 3 years. I did not know I could claim any of it. However last year I read and it states after 2010 divorce decree is not even considered, it is only who has the kids the most days of the year. This year 2014 I will have the kids most days of the year, can I claim my kids? or does him designating the residence mean he gets to?
Thank you in advance !
Hi Savana,
You you have never heard of EIC, then it’s probably because your income is too high for it to be relevant That’s a good thing.
Only someone with divorce papers would ever have to deal with form 8332, so that’s why you only see it there.
If she is not required to pay child support, but pay the life insurance policy–I guess that’s it. She’s done what she’s supposed to do. If she hasn’t violated the divorce decree, then you let her claim the exemption. That’s the price you pay for the life insurance I guess.
I have a few questions.. I’m asking on behalf of my husband ( I do the taxes). He was married before me and they had a child. In the divorce decree it states ” the parties shall alternate the exemption each year. The husband shall be permitted to claim the child in odd numbered years; the wife shall be permitted to claim the child in even numbered years for so long as she is current on her child support. ( she doesn’t pay child support. She has to keep up with a life insurance policy). The husband shall execute an IRS Form 8332 each year the wife is permitted to claim the child, granting to the wife the exemption rights for the child.” She has not seen him in over a year and a half. How is she allowed to claim him when he hasn’t been with her at all. My husband’s tax refund is mainly from claiming his son. Please help me understand. I’ve never heard of EIC or the 8332 Form other than in his divorce papers.
Hi Jan,
Thank you for responding. My question however is…….Because I was custodial parent, and lets just say I claimed my son and then my ex also did……who would be penalized? There is a tax credit on his tuition…. he has more in loans, then in scholarship. Thank you
Gee Laurie,
You were the custodial parent and now your husband wants to claim your son since there’s a 2500 tax credit on him?
You say you didn’t pay any tuition, so maybe there is no tax credit, but if your son had a loan and it wasn’t all scholarship, then there’s the potential for that $2500 tax credit.
So before you give up the exemption–I’d take a good look at the 1098T to see what it says.
Now, it’s possible that your son got a really good scholarship and actually received more money than his tuition, in which case he’d have to pay tax on that. Then, I’d let your ex take it. “Go for it, Honey! Just make sure you pay Junior’s taxes too, okay?”
Sorry, I’m kind of mean.
If you do allow your ex to claim your son, and take the education tax credit, you still are the custodial parent and you keep your rights to claiming head of household tax status and any EIC if your income qualifies.
@ Paula,
you can sign the form for any children you want, 1 or 2 or none.
Maybe you should sign the 8332 for your son who is not in college and not sign for your daughter–that would be my recommendation. That keeps the college tax credits with you. Although they might be worth more to your ex because of your low income. Just a thought.
Hi Joanna,
you could file back taxes. It’s a little nasty but I think you’re tough enough. (You’re a vet, you should be tough enough.)
I think getting a lawyer on the identity theft would cost you lots of money but it wouldn’t get you anything. You can ask, maybe I’m wrong there, but I haven’t seen anybody win anything on ID theft yet.
Or maybe you just tell him you’re going to file back taxes and see what kind of deal he’s willing to make if you don’t?
Hi Paula,
okay, given your income, you want to keep the head of household, EIC section. Now, if you give your ex the dependency exemption, then he gets the exemption and that gives him the American Opportunity Tax Credit for your child’s college education. So—-if he’s paying the tuition, I’m okay with that. If he’s not paying the tuition, then I’m not so sure.
So, if you sign the 8332, then he’ll get the college tax credit. So, what do you get if you let that happen?
I was also custodial parent.
Hi, I have been divorced since 2010 in Texas. My son turned 18 on Aug. 17, 2013 and went off to college that same month. My ex wants to claim him, and education deductions this year. I have always claimed, and there is nothing in my decree that states anything about taxes. Do I have to let him file? I don’t want to be audited if I claim as well. Neither of us pay our son’s tuition…he receives financial aid.
Thank you, Laurie
update to above question, appears The judge would have to give me both as dependents and I would have to sign the form so he could have the dependent exemption for 1, the daughter, I would have the EIC/head of household. My son would still be my dependent, not signing form for him? If there are 2 children involved will this still work? or is form for all children.
I am going thru modification at this time. I have exactly half [week on week off] custody for daughter in college. She is my depended at this time. The judge is looking at changing this if he pays all out of pocket expenses. I brought up the form 8332 to my lawyer. He also wants her child support to go to her directly and the EIC would still allow me to help her some as she can not drive and I am her driver on most accusations. My lawyer is interested if I can continue to get the EIC & head of household and how that works with the lifetime learning,and education credit ect. Will he loose anything from me doing it this way? will I? He makes 75,000+ a year while I make almost 8,000 [4715 AGI], I do not know if I get the dependent deduction it does say her name and a 1 in the box [I don’t see where it is or should be on tax form] other than that. It seems to show up to state form. I paid all tuition expenses last year but do not see it on form as a credit ether. Can I stipulate in modification that form 8332 be used until daughter is out of school or 24 which ever comes first. we were separated in 05 and divorced in 07, I have had her a dependent all the time since 05.
I also have a son that is involved in the Modification and word was judge would give him to me as dependent, is there any reason I should or should not do the 8332 with him also tax wise?
First of all, thank you ever so much for the information Jan. As for that bet, well… after some prodding, he so much as admitted that for the first 2 years he did indeed file an 8332, but that, from that point forward, he never again sent one in again. Really? I guess he thinks I’m about as dumb as a rock, (and I was til I found you!!) Of course he wouldn’t have had to send in anymore forms if he just gave himself the privilege of x# of years rather than the just yearly option. Or, maybe, if we just acted like the divorce never happened, we could, perhaps get away with all the IRS goodies. (apologies for the sarcasm)
And I thought as much, since he forged my name to several checks (made out to himself, by the way) drawn against my sole checking account while we were still married, so my cookies were already frosted! But “THIS” is a whole different matter altogether. Not only does this have to stop, but something needs to be done about what has already occurred, and I am not interested in waiting do get the ball rolling until next year when I * Will* be filing my own return. Where do I start and should I get a lawyer?
Hi Kristine,
I know exactly what to do!
You ex was only given the “exemption” not the right to claim them as head of household or anything like that.
You need to claim your children on your tax return as head of household. (Or if you’re married, for EIC purposes.) Don’t qualify for either? Put them on your return anyway.
It’s 100% against the law for his girlfriend to claim your children in any way, shape or form. So, there you go.
Now, let’s say you have no income. Fine, do the return, put $1 on line 21 of other income (otherwise the software won’t make your return go) and file. That’s just telling the IRS that you’ve got kids to claim. It sends “notice” that somethings fishy with those social security numbers.
If you’re already married and there’s no “head of household” to claim, you can still get the audit functions rolling by–okay and this is a pain and kind of nasty but–here goes–you file an amended return claiming the kids as dependents. You’ll lose the case, because of the court order, but it will start the audit and once she’s audited–it will prove to the IRS that she can’t claim the kids. Ouch!
I know that’s kind of nasty, but I’m mad that this woman that I don’t even know is illegally taking my (by my I mean Jan Roberg’s, my) tax dollars illegally. She’s ticking me off. I’m okay with you getting the deduction, the kids are yours. I’m even okay with your ex getting the deduction–it’s his legal right. But they’re cheating the system and that frosts my cookies.
You could report her for fraud: http://robergtaxsolutions.com/2010/11/how-to-report-tax-fraud/
But I find that claiming the kids on your own return works faster and more likely to illicit a response from the IRS. Good luck with whatever you choose to do.
Hi there. I was divorced in Wa State in 2012. (Separated since 2003) we have 2 children together. Father was given the tax credit in court because I am a homemaker. He is currently employed, however, he owes over 12,000 in back support. He will not discuss anything with me reguarding taxes. Our two children reside with me, all year other than 3 weekends per month and yes, i have court papers to prove. His close friend told me that he is having his girlfriend claim our two children so that child support does not hold any of the tax money and it ultimately ends up in his hands as his girlfriend gives it to him. I understand this is a bizarre situation but he has done this for the past 3 years so I am wondering if you might have any advice as to where I could start to put an end to this?
Hi Christopher,
I hear you. I can’t help you, but I hear you. You’re proof positive that lawyers need to make sure that spouses sign the 8332 forms right along with the actual divorce paperwork so that parents that are allowed to claim exemptions actually get to take them. Of course, once that starts happening, they’ll change the rules again anyway. (Sorry for the sarcasm, but it’s kinda true.)
Hi JoAnna,
First off, thank you for your service to our country. Now for the tax issues.
I would bet you $100 that your ex did not file a 8332 form. You never signed one and he’s probably not stupid enough to commit fraud.
People get away with filing tax returns and claiming kids without 8332 forms all the time. Especially the biggest cheats because the 8332 only allows him to claim the exemption, not the other benefits of EIC or head of household filing status.
You said he makes a lot of money so claiming EIC is probably not what he’s doing. But that would be the biggest benefit to “forgetting” about the 8332 form.
Anyway, what can you do? You can start filing your own tax return. I realize that you don’t have any taxable income, but you’re just putting it out there that the kids are not with him. Here’s a link about how to do it: http://robergtaxsolutions.com/2013/12/how-to-file-a-tax-return-when-you-have-no-income-and-why-you-might-want-to/
Basically, you put yourself down as single, claim the kids as dependents, and put $1 on line 21. It gets the IRS to look into things. And since the children really do live with you–well you’re ok. Plus, you haven’t asked for a refund or anything anyway.
Now another option–for what it’s worth, is to tell you ex that you have been advised to file a tax return and that you are claiming the children. You just want to give him a heads up in case he has been claiming them illegally. Perhaps you two could work out a deal where he does pay you some child support for the privilege of claiming the kids on the tax return. It’s a thought. Good luck.
I’m not even sure where to start but I will do my best to be as clear as possible. Concerning form 8332/divorce papers: There is nothing in my paperwork that makes any reference to any IRS dependent stipulations, meaning who gets to do what or when as far as taxes are concerned.
This part I remember very well because I would be darned if I was going to support our children 24/365 while he got all the tax breaks/benefits, whatever all that would someday include. So I’m thinking that pretty much nixes the “Divorce Papers” option.
Now about that form 8332… Never heard of it before yesterday, let alone saw and signed one of them in the last 9 years! Although, I did look it up and saw one online a bit earlier today. And I see where not only is my signature, as the custodial parent, required, but also my SSN, (obviously).
Why haven’t I known about this before you might be wondering? Well, I am a disabled vet and have raised my three children, and my granddaughter on my service related disability compensation check each month. It’s not much believe me but with that and a little child-support for three of the children… we barely eked by month after month. However, I myself have had no taxable income, “Nothing in, Nothing out” as they say. Since I wasn’t required to file, I did not.
No doubt that was my own undoing, or perhaps my unwittingly paving the road for my ex-husband to cash in on my ignorance. My ex-husband makes extremely good money every month, week after week, he makes more in that one week than I get all month. Nevertheless, I cannot begrudge him his earnings, I do however, have to wonder how in the world he keeps getting away with claiming the kids and getting these sizable tax returns? I mean seeing how I never signed away my rights, because that’s pretty much what it amounts to, and yet… seems like someone *must-have-had to sign it* ~
I don’t even care about any refund he may have gotten, I do however care if my name and SSN were used without my consent! At the very least, that would constitute Identity theft “IF” that were the case, not to mention all the other not so pleasant possibilities. We all might consider what we might do in a case such as this if it were a stranger, ex-husbands or wives, etc… cannot expect to be above the law if they are willing to stoop so low.
The dilemma. How to get copies of those forms, if in fact they do exist with my signature on them… Can I just call the IRS and ask them? Thinking that, technically speaking, I probably don’t have a right to copies of his tax papers, but then again… if a document exists with my signature on it, then do I not have a right to a copy of that?
I have a court order specifically stating I get to file a tax exemption regarding one of my children…yet the IRS just notified me that I must have her sign the 8332?!? The courts gave me permission so why do I still have to go through her? The IRS is usurping governing laws. The only thing that should be needed is a copy of the court order and that’s it!! Not everyone gets along well enough to ask for a casual signature! What do they think they’re doing making everyone jump through all these hoops? That’s what an audit is all about. Let people file, process them with the information given then audit them if they suspect fraud. They have no right to play magistrate! I am enraged! Can nothing be done to stop this gustapo of parental rights?!?!
Hi CS,
I’m sorry but I’m not an attorney so I can’t give you legal advice. You’ll need to talk with your attorney. Sorry.
Hi Tony,
It sounds like you are truly the custodial parent and that you can prove it. Yes, it’s frustrating, but you are going to have to mail in your tax return and there will most likely be more paperwork.
It is possible that your ex is innocent and did not claim your daughter. (Highly unlikely, but still possible.) The IRS won’t ever tell you though.
Here’s basically what will happen: you file the paper return. The IRS will send you both letters saying, “hey, you claimed a child that someone else claimed, are you sure you wanted to do that?”
Then they’ll ask you for proof that your child lives with you. Which you will send.
Then you’ll win your case. Your ex will get a nasty letter saying that she owes the IRS the money back with penalties and interest.
Then next year she’ll probably try to do it again, but hopefully will get caught before they give her any money. (I say hopefully–the IRS is getting better at catching folks, but it ain’t perfect.)
I was divorced in Illinois in 2010. My son is now a Junior in college. There is nothing in my divorce agreement about tax exemptions and my son lives with me when he is not away at school and I pay for 100% of his needs during that time.
My ex pays 40% of tuition, room and board and books, my son and I split the rest of the tuition, room, board and books and I pay 100% of everything else he needs to exist – transportation to and from school, cell phone, personal hygiene, medications, clothing, etc.
I have claimed him on my taxes every year – I always file at the end of January so that I can get his FAFSA in as early as possible. This year my ex informed me, after my taxes were already complete, that he decided that he was going to claim the American Opportunity Tax Credit for 2013 and 2014 and that he expected me to sign a form 8332. I told him that based on tax law he wasn’t entitled and that I had already completed my taxes and therefore would not be signing it. He has decided to take me to family court to ask a judge to force me to sign this form.
I know that according to tax law my ex is not entitled to this deduction. I noticed that you mentioned in earlier posts that once a child is emancipated a custodial parent is actually no longer a custodial parent and therefore does not have the right to sign over the tax exemption. Would that be considered the situation I am in here?
My question is what do I need to bring with me to family court to prove that my ex is not entitled to this exemption?
Thanks
Hello, Well I am not married to my we did have a child together. We went to court and written up a good parenting plan for our daughter. Well everything was going good untill I filed and my daughter has been claimed by another party. I know it was her and I called the IRS and they told me to send in my taxes though mail. I’m still waiting for them to reply. Well I have custody of my daughter 5 days out of the week and it’s been set in stone for quite a while. I want to file a contempt paper and take her to court and even though I know she will say she didnt claim her ( shes a huge liar ) she thinks she will get away with it. I have proof of over night stays and proof of the court order saying I get to claim her this year. My question to you is what is going to happen. I mean I wish i wasnt so frusterated about this as I am going to put her money in her bank account I have for her as her mom will spend it on herself knowing she sees our daughter 2 times a week. 🙁
Hi Shelly,
I understand how you feel. So what I’m going to tell you isn’t necessarily nice, but it’s perfectly legal and legitimate. It won’t help your taxes at all, but it might make you feel a little better.
This advice is for anybody in your situation:
Claim your one daughter for the exemption, like you always do.
Claim the daughter that you don’t get to claim the exemption for as “claiming for head of household”.
It does you no good whatsoever, but it will mess up your ex’s ability to claim EIC and head of household.
Different software programs will have different ways of doing this. Mine has you claim that the child lives with you but you’re not claiming the exemption.
But that’s basically what you need to do.
Another thing–do send you ex the 8332. Back when I used to work at the big box store, men would briing those forms in thinking that was their ticket to claiming EIC, not realizing that the 8332 guaranteed that they couldn’t claim EIC. It’s worth a shot anyway.
I was divorced in Minnesota in 2011. We have 2 children, 13 and 11. I have full physical custody, and the divorce decree states that we each get one child as an exemption as long as ex is up to date on child support. He has always had arrears because he doesn’t pay medical reimbursements for our daughter with diabetes in a timely manner. Late in December 2013, he paid his arrearages so that he could claim deduction (he is already behind again, nice guy!) . My children go to a private school which I do get some aid from that school but I pay the remainder of the tuition, My ex refuses to help with it. Anyway, he has now called the school to find out what 1/2 of the tuition paid was so he can claim it on the MN state return. He hasn’t paid anything, but wants to take the deduction. He is also I believe going to file head of household and take the EIC for the child he gets to take as a dependent this year. The children live way more than 50% with me. So from what I have read is that all of these things, the tuition, the head of household and the EIC are against the law. He has not asked me to sign the form 8332. I already filed and only claimed the one that I am allowed, and have more income than the limit on the EIC. I guess my question is how will the IRS and the State catch this? Can he file like this? I guess it just bothers me that he is trying to get credits for tuition, etc that I pay when he refuses to pay anything and plays the games with child support like he does.