Tax Status of Your Dependents After the Split
Section 152(e) of the Federal Tax Code provides that the custodial parent is generally entitled to the personal exemption for the qualifying child. To be a “qualifying child”, you must satisfy four tests:
- Age – the child must be under the age of 19 at the end of the tax year or under the age of 24 and be a full-time student
- Relationship – the child must be your child (biological, adopted, step, foster) or a descendant of one of them (grandchild) or your brother or sister (full, half, step) or a descendant of one of them (niece, nephew)
- Residency – the child must have lived with you for more than half the year
- Support – you must have provided more than half of the child’s support during the tax year
In cases where the non-custodial parent wishes to claim the exemption, additional requirements must be satisfied:
- The child receives more than one-half of hissupport during the calendar year from his parents and the parents are divorced, legally separated (either by decree or written agreement) or living apart for at least the last six months of the year; and
- The child is in the custody of one or both of the parents for more than one-half of the calendar year
In addition, to claim the exemption, one of the following documents must be attached to the return:
- The custodial parent releases the claim for the exemption (Form 8332 – See Section 152(e)(2)); or
- A multiple support agreement establishing who can claim the exemption (See Section 152(e)(3)); or
- A pre-1985 agreement granting the exemption to the non-custodial parent and said parent provides at least $600 for the support of the child during the tax year
What does this mean for me?
If you’re the custodial parent, you are probably entitled to the tax exemption unless you have agreed to allow your spouse to claim the child on his or her taxes. To be sure, you should review your divorce decree or separation agreement (from the court) to determine who is allowed to take the exemption.
What if I have joint physical custody?
The IRS does not allow for a single exemption to be “split” between the two parties in the same year. You can take turns claiming the exemption by swapping out years but the custodial parent will have to sign IRS Form 8332, releasing their claim on the exemption for any year the non-custodial parent claims the exemption. Or if there are two children, for example, each parent could claim a different child. Mom can claim one and dad can claim one.
In general, the IRS allows the parents to agree who can take the exemption when both parents meet the qualification requirements, such as in the case of joint physical custody. If the parents cannot agree and the child lived with both parents the same amount of time, then the IRS will grant the exemption to the spouse with the higher adjusted gross income (AGI) and disallow the claim on the other parent’s return. If the parents cannot agree and the child lived with one parent even slightly longer than the other, then the IRS will grant the exemption to that parent and disallow the claim on the other parent’s return.
It should also be noted that other credits such as the child tax credit, earned income and deductions for child care expenses can only be taken by the parent claiming the child as an exemption – these cannot be divided between the parents.
103 Comments
I need some info about claiming my four children…I’m separated for almost 5years now…my kids go to their dad every other weekend and yes his paying child support for 4 kids in the amount of 650 per month…this past years i’ve been claiming all four and now he decided to claim 2 of them so he doesn’t have to pay any back taxes….i wanted to know if he can claim 2 or not. People tell me he can’t because he hardly sees the kids even though he is paying child support. So, yes I’m confused about it. I tried talking to tax people here in Hawaii and no one can give me a straight answer. Thanks, Nadine.
Generally, the parent with the majority of custodial time is entitled to claim the children as dependents on their tax returns.
Parents may agree in writing that the parent with lesser custodial time will claim the children. You may want to be sure that you did not previously agree in writing that father can take two of the children as deductions.
For more information about specific tax laws, you should contact an accountant, or check Hawaii’s state website for its tax laws.
can i claim my son even if i don’t live with him? And will the mother find out?
If you are not custodial parent (the parent with the majority of custodial time) you will need the custodial parent to sign IRS Form 8332 permitting you to claim your child as a dependent on your tax returns.
You would have to provide him with form 8332 in order for him to claim the exemptions/dependents. Otherwise the custodial parent gets them. Go to IRS.gov for more information.
I was wondering if I am the only one to work and my kids mother dosn’t work is their some kind of way I can file my kids during the tax season I also do pay child support and what can I do to make this happen
The parent with more custodial time is entitled to claim the child(ren) as dependents on their Federal and State tax returns. If you are not the parent with the majority of custodial time but want to claim the child(ren) as dependents, you can enter into a written agreement with the other parent which provides that you can claim the children as dependents. You will need to attach a copy of this agreement to your tax returns. If the children’s mother does not work she may be amenable to this agreement since claiming the child(ren) as dependents does not really provide her with any tax benefit if she has no income.
I have the same situation as William. My ex has no income; however, I already claimed my children. I did not have the 8332 because their mother and I do not get along. I got an IRS notice that someone else claimed them (her parents). They do not live with her parents. Can she sign over the exemption to them? Will I have to repay the refund? I was the children’s sole source of support through child support and additional contributions (food, clothing, diapers, a car, and cash) that I did not keep receipts for.
Your ex’s parents cannot legally claim the children as dependents if the children do not reside with them. The parent with the majority of custodial time is the person entitled to the dependency exemptions. If you are not the parent with the majority (more than 50%) of custodial time then you cannot claim the children as dependents unless you have a signed IRS Form 8332 (as mentioned in the article above) that entitles you to the exemption.
Hello,
I have a daughter that is 22 years old and she is a full time student and she works. Her gross income exceed 3500 for this year. Can I still claim her as my dependent?
Also, can she claim file her own return if i claim her as a dependent?
Hi, Lily. The answers to your questions are dictated by the IRS tax laws, rather than family law, so I would recommend you consult a tax adviser or check the IRS website.
My ex-husband is calling me after 13 years of being divorced and is asking me for my daughters SS# he claims it’s for work purposes but I have a feeling he is trying to claim her on his taxes seeing he is recently divorced again and he can no longer claim his new ex-wifes children. How is the IRS going to know he is the non-custodial parent and how am I t be sure he is not going to forge my name on the release form to get the tax return. He claims if I do not give him the SS# he is going to go get it from the SS office can I stop this from happening? Please answer ASAP. Thank you
There is nothing you can do to prevent your ex-husband from unlawfully claiming your daughters as dependents on his tax returns. If two parents claim the children then the IRS will assess penalties against the parent who did so unlawfully.
If you are the custodial parent and have not signed IRS Form 8332 permitting your ex-husband to claim the children, then you may lawfully claim the children as dependents on your tax returns.
My husband is paying close to $800 a month for his two kids.The mother of his two kids now have for kids.For the past yr,she has been letting a friend and other family member claimed the kids.I want to know if there’s something we could do about it situation?
The parent with the majority of custodial time is entitled to claim the children as dependents unless there is a written agreement between the parties otherwise.
If friends or other family members are claiming the children as dependents on their tax returns and they do not have custody of the children for the majority of time then they are are taking unlawful deductions and can be fined by the Internal Revenue Service.
I have a divorce settlement which allows me to deduct one child on my income taxes and my ex-wife to deduct one child on her income taxes and alternate the third child every other year, as long as she is W2 salary employed and my child support obligations are payed, which it is and I currently pay more than my state requirements in child support.
My ex is threatening to file her taxes claiming all three deductions and that it is my IRS problem not hers. At decree entry, my attorney did not have her sign IRS form 8332. My question is can she get away with this and what do I need to do. Is this a civil matter? or do I need to get a tax attorney.
I suggest that you consult with your tax return preparer. Generally, I would advise that you take the deductions permitted under the settlement agreement and attach a copy of the settlement agreement to your tax return.
My question is, if I paid child support for my child providing more than half his financial support for the year, do I have the right to claim him on my income taxes if he lives with his mother who does not provide even half of his support?
Hi, Thomas. If you’re divorced, then Monica’s first two comments explain which parent has the right to claim a child on his/her tax returns (it’s dictated by your custody agreement, rather than how much financial support you provide.)
Soi had a one night stand with a girl & she had my baby i pay child support but she does not let me see my child. can i do something? and also can i claim my child on my income since i work & am paying child support…the mother of my child does not work she is still in high school.
If you would like to have visitation with your child and you cannot reach an agreement with mother you or your atorney must file a motion in court requesting visitation.
The parent with the majority of custodial time is entitled to claim the child as a dependent unless there is a written agreement between the parties otherwise.
Hi,
I have one question, My sons father would like to claim my son on his taxes, but he still owes back child support, in the child support order he is able to claim my son every even odd year, if he does not owe back child support. He Still owe back child support what can i do to make sure he can not claim him?
Help
Thank you
If your child support order provides that father cannot claim your son as a dependent in odd numbered years if he owes child support, then you are able to claim your son as a dependent.
Be sure to review the order carefully to ensure that this is what the order provides. You will also want to include a copy of the order with your return and an explanation that father owes child support, thus you are entitled to take the deduction for that year.
Here is my question. My soon to be ex and I have lived together for most of the year, we lived with my mother when we didn’t live here. He works and I don’t. He pays the electric bill and that’s it. When we need diapers and wipes, he will ask his mother or I will have to ask mine. I did have some money saved up which paid for a majority of the necessities that my children and I needed. His mother also pays the house taxes and the insurance ans taxes on his car. What I am wondering is, can my mother claim my children on her taxes? I know that if he claims the taxes they will be gone he will have nothing to show for it. I would like to get the money back and pay his mother what is owed, I will also be moving out soon and could use it for living expenses. We are not married by the way. He is threatening that if anyone but him claims the children he will have them thrown in jail. My thing is, he barely even supports them, he pays the electric bill and that is absolutely it. He won’t even do so much as change a diaper or buy any for that matter. So would I get in trouble if my mother claims my children?
Hey Krissie I’m having the same exact problem. Has yours been solve yet?
The parent or person with the majority of custodial time is entitled to claim the children as dependents.
My soon to be ex wife and I separated on July 20th. She filed papers on August 7th. We do not have a separation order or a divorce decree. Only a temporary parenting plan signed by a chancellor. She went and filed married separate and got a 2000 dollar refund. I am now stuck with a 6900 dollar liability. Is this legal?
I am divorced with two children, and I have primary custody of them. They see their mother every other weekend. My divorce decree states that if my ex does not pay all of her child support for the tax year 2009, she cannot claim one of our children on her 2009 taxes. Her support was due on December 28, and has not yet been paid. My question is, does that mean that if the support is not received by December 31, it has not been paid for that tax year? Is there a certain cutoff date that applies?
Unless your Judgment specifies otherwise, you may assume that the end of the 2009 tax year is December 31, 2009.
my husbands exwife is trying to say that she will claim their son on this years taxes when in their divorce decree they agreed that they would alternate years that they would claim him. It is my husbands year to claim his son and this will also be the first year that he and I file as a married couple. Yes she is the custodal parent but that decree in their divorce papers override the fact that she can claim him right????
The terms of the agreement control. You and your husband should claim his son as a dependent this year as set forth in the agreement. You should also attach a copy of the agreement to your tax return.
Hello, reading through the above messages I’m pretty sure I know what I need to do but just want to make sure. I have 2 children of which I pay support for. Their mother is the custodial parent however she had no income whatsoever and claiming either of the two would be pointless. According to our decree, we each claim one of the children unless she has no income then I am entitled to claim both children. Since this is in the decree do i still need to have her sign a IRS form 8332? Lastly, when filing my tax paperwork what do I indicate is the time spent living in my household?
Yes, your ex spouse needs to sign IRS form 8332. Your tax paperwork should indicate that actual time the children spend in your household.
Hey Monica I have a question I’m 22 years old and I have a daughter that is 11 months old. I’m a stay home mom & I stay with my parents for now until I get on my feet. I’m unemployed. I never been marry but I recently got separated from my ex boyfriend. We lived with for 10 months after her birth all that he really provide for her is a place to stay & diapers & wipes my family has help me on everything crib,clothes,shoes,car seat,etc,etc for my daugther. Now that I left can he claim her in his tax return? I live in Illinois and he stays in Minnesota my daughter was born in Mn too.
In order for a person to claim a child as a dependent on his or her tax return, that person must be a parent or qualifying relative.
Hello. My husband and I have been divorced for 2 years. He is obligated to continue paying for my son’s health insurance through his work but is still paying for mine as well. Is there a tax advantage for him in doing this?
The cost of some health care plan premiums are deductible expenses. Whether your ex spouse is able to deduct the cost of health insurance premiums he pays for you and your son depends on the type of health insurance plan.
would my fiance benefit more if he filed as single or as head of household and claimed both me and my son?
If the custodial parent is self employed and does not pay taxes does that mean that the noncustodial parent can claim the child on his taxes being that he provides for the child? I’m trying to verify that the custodial parent cannot give the child’s social security number to another individual to file for her being that she has unreported income coming in and the father does pay support for the child. If she does not pay income tax does not filing of the child go to the noncustodial parent if there is no one else supporting the child? Also, if the custodial parent allows another individual to file the child for an excess of cash is this not illegal?
The custodial parent is entitled to claim the child as a dependent on their Federal and State income tax returns. If the custodial parent has no income and has no use for the dependency exemption, the custodial parent can sign IRS form 8332 which allows the other parent to claim the child as a dependent. A third party is not entitled to claim the child as a dependent unless the child lives with that person for the majority of time.
I have a question my boyfriend and I have been raising his son for the past year, But there is a court order saying his mother can claim him for tax returns for 2009. Can we still claim him or would we get intruble. I think its wrong for her to get that money when she has not had him. And there is not enough time to change it threw the court.
Since there is already a court order providing that mother is entitled to claim the child for last year then mother is the only parent entitled to the last year’s dependency exemption. If you and your husband want to claim his child as an exemption for this and future years (going forward) because your husband is the parent with the majority of custody then your husband should obtain a court order providing that he is parent entitled to the dependency exemption.
my husband has a son with an ex girlfriend.. they both have joint legal custody his son is with us 50% and his mother 50%…my husband pays child support to her! my husband works and so do i but the childs mother does not and never has! she currently lives with her boyfriend and has not lived with her mother for a year…can her mother claim my stepson over my husband?
Your husband should review the court order or judgment to find out if he shares joint (50/50) physical custody of the child.
Physical custody is the actual timeshare or visitation. Legal custody is the ability to make decisions about health, welfare and education of the child.
Physical custody is relevant when determining which parent is entitled to claim the child as a dependent on their tax returns. If your husband and the mother have 50/50 physical custody either parent may claim the child as a dependent, but this should have been addressed in the order or judgment or by agreement of the parties. If physical custody is not 50/50, the parent that has the child the majority of the time is entitled to claim the child as a dependent.
So my question is I get ssi my boyfriend is waiting for his ssi and we have a 6month old daughter our daughter stays with her gma my boyfriends mom down in the cities cause she helps with a lot of her care and baby stuff my question is my daughters godmother is my boyfriends sister who lives with my boyfriends mom can my boyfriends sister claim her seeing that she lives with them and has been for like three months
A family member may be able to claim the child as a dependent on their tax returns, if the child resides with that person for the majority of time.
I am divorced with 2 children. I want to claim the children on taxes and so does my ex. The amount he pays in child support is about the same amount I make yearly. I live with my fiance that also helps support the children. I am the domiscile parent and their father sees them only every other weekend. We have a verbal agreement only that I can claim the children, but he seems to be changing his tune this year…what would happen if I claim the children before him and then he tries. We have nothing in our divorce decree that states anything about this.
Since you are the parent with the majority of custodial time, you are entitled to claim the children as dependents on your tax returns. You should attach a copy of your divorce decree/judgment, which reflects that you the majority of time, to your tax returns.
I am a single mother with two daughers. My eldest has a baby and is going to school full-time. She has had two part-time jobs last year, but nothing to put her over the dependency limits. Can I claim my daughter and still have her claim her son as a dependent? In other words, she still wants to file her own taxes and claim her son, while I feel that I have a right to claim her, since i pay for everything.
Since you daughter did not earn much money, it makes more sense for you to claim both your daughter and grandson as dependents.
I am divorced. My four children live with my ex wife. My ex wife did work at all last year. My ex wife currently lives with my aunt and has done so all of 2009. Can my aunt claim the children for the child tax? I know she can probably claim head of house hold and get the earned income tax? Can I claim all 4 for child tax if my aunt cant?
The parent with the majority custodial time is entitled to claim the children as dependents. From the facts in your question, it appears that your ex-wife is entitled to claim the children as dependents. Your ex-wife can agree to let you claim the children as dependents. She would have to sign IRS form 8332 in order for you to be entitled to the exemptions.
I am a single mother with two daughers. My eldest has a baby and is going to school full-time. She has had two part-time jobs last year, but nothing to put her over the dependency limits. Can I claim my daughter and still have her claim her son as a dependent? In other words, she still wants to file her own taxes and claim her son, while I feel that I have a right to claim her, since i pay for everything.
I am currently separated from my wife, and she has custody of our two kids. We did not separate until September of 2009. She has said that she is claiming the kids on her tax return. Is she legally allowed to claim both of the kids, even though I contributed and lived with my wife and kids until September?
Since you lived with the children and contributed to their support for the majority of the year, it seems you would be entitled to claim them as dependents. However, if your Wife also lived with the children and contributed to their support for the majority of the year she would also be entitled to the exemption. Perhaps, you and your wife could agree to each claim one child as a dependent for 2009. Be sure to fill out IRS Form 8332 reflecting this agreement and include the signed form with your tax returns when you file them.
If there is a divorce decree signed by a judge that states which parent can claim which child does this supercede the law about where the children reside and who can claim them? And if a parent refuses to sign the IRS form 8332 what actions can be taken? Can the other parent still file and claim the children according to the divorce decree without getting in to trouble with the IRS? Or do they have to have the form 8332 to go with thier returns when they file?
The provisions of the Divorce Decree/Judgment regarding the dependency exemptions control. The IRS requires that a signed Form 8332 be submitted with the tax return claiming the exemptions. If you cannot obtain your ex spouse’s signature on Form 8332, attaching a copy of the Divorce Decree/Judgment to your tax returns may suffice.
The IRS has recently indicated that it is a better practice to attach a signed form 8332 when claiming a dependency exemption, rather than attaching a copy of the judgment.
Hi,
My ex is claiming my daughter after the divorce according to the decree for years. Other then that he doesn’t have any contact with her. I want to claim her now when she is 16 because it is going to help her with stipend and scholarships for college (he is making much more money then me and not going to help her through college). I don’t seem to be able to change it legally, family court is refusing to change. How do I get an opportunity to claim her? We had a default devorce decree, I never signed any forms for him, is he still able to claim her?
Thanks,
Julia
Thanks, everyone, for your comments and questions. We do our best to answer as many comments as we can on this site, but we may not be able to reply to everyone. If you need to make sure you get a response, go to the Ask a Lawyer page.
Hello, My 18 year old daughter and her 16 month old son live with me. Normally her father claims her and her sister as dependents and I claim them for the EIC. My question is who can claim the grandson? I think I can because he lives here.
My daughter made $1700. last year so does she need to file her own return?
THANK YOU!!
I was wondering who is entitled to claim my daughter between me and my boyfriend. We live together but we are not married. We live at his parents house and we don’t pay rent. I pay her child care and medical insurance, and most of her clothing. He pays for her diapers and milk. His parents buy most of the groceries. I worked all of 2009 and my boyfriend worked for 1/4 of the year and was on unemployment the rest of the year. Any advise?
i was never married but i have two childern from a past realationship. the mother of my childeren does not work she collects social securty for herself and 1 of my childeren. i also pay child support and medical. she also lives off public assistance food stamps, lihep ect. i also had the childeren for the same amount of time lasst year as she had. there is no open custody case. my question is can i claim these childeren on my taxes since i do pay for everything they need, and is there a problem with claiming childeren who get social securty.
I’ve had physical custody of my daughter since her birth.I’ve been on tanf since her birth but worked prior to her birth.I’m just not sure if I can claim her as a dependent if I haven’t gone to court yet to make it legal custody.Not like the dad wants custody.I provide all support aside from providing a roof over our heads.My dad provides that for me and her for the past 4 months.
I am engaged to my fiance and I have two children of my own and he just received his two kids this year because their mother is in jail. She is going to send him a signed form stating that he can claim them. But I make most of the money and he is laid off due to the season, so can he sign another form and allow me to claim them since i pay for their daycare, food, etc… I make more then he does by at least double.? He has had them for a year now. The kids mom is very mentally and emotionally unstable, so just because she said that we will not believe it until in comes in the mail. So since we have had them for the year time, can he just fill out that paper for me? We do not want her to come back and claim them even though they have not been with her, and then bite us in the rear, even though she is in jail (for now that is what it says in their divorce decree) that she can claim them. But once again we have had them for the year time.
Hi my child’s mother and i share joint custody but my daughter lives with her mother last year around this time her mother claimed are newborn baby on her tax returns my daughter was maybe a month old. This year i was supposed to claim are daughter but her mother had someone else claim her behind my back what can i do about this.
can my ex wife claim my daughter as a dependent and get the child tax credit, at the same time i claim my daughter for the purposes of eic
Can my ex husbands new wife claim my children if he owes a ton in back child support and hasn’t paid even though the order went through last June?
I have a question about my current tax situation. My wife and I have been married for over 3 years and her ex has only seen my step-daughter a few times during that period. He does pay child support of $200 a month and in their divorce papers, they agreed to take turns claiming her. This is his year to claim her. We have not included our daughter in our taxes, but my wife has filled out an Earned Income Credit form which includes information about our daughter and increases the amount of taxes we get back. The problem is, we just found out that her ex has made the claim on his taxes that he has had custody of my step-daughter for twelve months to get back more money(?), and (according to wife) that we now cannot turn in the earned income credit form because of this. He wants to just “give us the money” [that we'd lose from the EIF] by hand, and my wife doesn’t see that as a big deal. However, I am very suspicious of this and would like some input on what to do, from a legal standpoint. Thank you.
i was wondering if my ex has no income is it possible she could get her mother to claim my son even if i was supporting him (food, diapers, clothes etc. and receipts to prove)up until 2 months ago when we seperated? and if i file my taxes and claim my son, what could happen if we claim him at the same time? and is there any i could do if she did claim him?
If you file form 8332 with the IRS and claim one of your children, how do you file with the State of Arizona? Can I claim my child as a dependant even if the child didn’t live with me, only had him 3 days a week? If you can reply soon, I would appreciate it, as I’m afraid to mail out my tax forms out.
Thanks a million for your assistance.
My ex-husband claimed my son for 2009. According to our divorce papers, he gets odd years and I get even as long as he is caught up on support.
He is not caught up, now what am I supposed to do?
My 48 yr old daughter had to move in with my husband & me in Nov 2008; she has had no income since Dec 2008 – we file married jointly – can we claim her as a dependent? She isn’t required to file taxes since she receives no income.
Can we claim my 87 yr old Mother who lives with us if her only income is her social security of $765/mo? My husband & I file married jointly.
I am in my second marriage. I have two children from a previous marriage that the judge awarded me Primary Parent on December 1, 2009. From January 1, 2009, til December 31st, 2009, they spent 184 days in my home and I covered half of their living expenses not including child support. I would like to know if the other parent claims the children as dependents, could I still claim them on my taxes? If so, in what regards can I do so?
My son graduated, last May and will be graduating this coming May with another degree. He is a fulltime student and he has no income except for a student loan to pay his tuition and fees. He lives with me 100% of the time. He also turned 25 this past December. Our child custody agreement states his Dad gets him for deduction, even though my son has been living and supported by me. And no child support has been paid to me in 6 years. I guess my question is can I claim my son as an exemption now that he is 25 or can I claim him as a qualifying relative since he turned 25 ? My child custody agreement does not state when the agreement ends.
I just received a rejection notice from the IRS for my federal taxes. It appears that my ex husband has claimed our daughter on his taxes. She was 18 years old and graduated from HS in June 2009. She is currently enrolled in college. I did not sign a 8332 form. Is there any legal action needed. Not only does this affect my refund but even bigger issue it takes away her Grants because his income is higher.
I have a court agreement from 2003 that reads that I am able to claim the child in even years and the mother in odd years. My interpretation to this is that the entitlement to claim the child as a qualifying child is clearly defined for specific tax seasons. Second, the court’s provisions overrule any IRS stipulation because the IRS tries to make their system unaccountable through their “mediational” rules if their is disagreement.
The mother and I have been claiming the child, like with how I have interpreted the provision to you, until the most recent year I was allowed to claim her. She had filed her as a qualifying child and now the IRS has rejected my child as a qualifying child. Without consulting with an accountant, I can clearly see as to what information an accountant would use as evidence for either party. My question to you is if two parents, whom have joint legal custody, are provisioned by the courts an allowance of claiming the child as a qualifying child and the other parent is allowed to only claim the child on a different year, is the parent whom files the child on their non year in the wrong?
My question is my ex lost custody of my son in October 2009. I have a new court order saying that I have sole physical and legal custody. The original divorce decree states that this would be her year to claim him but he has lived with me for well over half the year due to her substance abuse issues (which is also why I have full custody). The new decree does not spell out specifically anything about taxes just that he is to live with me full time and I do not have to pay child support. Well my ex claimed him this year even though he lived with her for less than a month and she does not have custody. I feel like he should be mine to claim as she lost custody. Who’s right and if it’s me what do I do?
My question is similar to Matteo’s (above). However, I am the mother who wants to claim my son even though our 2004 court documents have the non-custodial parent claiming him every other year. I’ve never signed a 8332 form but I’m not sure that would apply. I only ask this because his dad does not keep him on his visitation nor does he support our son as agreed. If I were to claim him anyway with proof of support, daycare, benefits, and housing would this override our court documents. I would rather get fined by the IRS than spend a fortune in court with no results.
Tiffani,
I can tell you that if you can prove, through various ways, that what you are saying did occur, I would speak to a lawyer as far as what various things could potentially happen. I can firmly tell you, however, If you did file the child on your taxes during a said year for the father, the father could in fact take you into court for being in contempt. You would then have to prove, through substantiating evidence, you are not in contempt and that the various facts about the father’s reluctance did occur. You would then be awarded by the courts that your were not in contempt and the father was disallowed the said provision due to his reluctance to fulfill factors that would prove supporting the child. This is just my law abiding opinion and fair interpretation of your concern, but I am sure there could be other things someone else would inform you with.
If you cannot prove your claims, and you did file the child when you were not supposed to, you have the risk of not only paying back the credits applied during that tax season, to the IRS or the father, but found in contempt which is not a good scenario.
A respectable tax accountant told me the following:
No one here is going to try to interpret a court document that we have never seen. Also understand that the IRS is not bound by the court document, you are.
In my state, to process an order to show cause for contempt of court has no fee. You could speak to a lawyer through a free consultation relating to what you are stating too?
Thank you for your input. I’ve never been in contempt and I’m sure I won’t start now. I have talked to plenty of lawyers who by the way charge $300/hr and up for any services beyond free consultation and have more than enough proof to prove years of contempt. But after researching I can’t find any other way to modify or process an order for contempt without a pricey lawyer. In my previous experiences with lawyers and courts regarding this matter I ended up with a financial burden in addition years of conflict. I was hoping that the 8332 form (I’ve never signed) would be a legal way for me to go forth claiming our son. However, it seems that this is not possible without it getting messy.
Tiffani
I am in the same boat as you. My divorce agreement states that my ex can claim every other year if he is caught up on child support. The child support division states he was cought up Jan 6-2010.My ex is stating that he was caught up Dec 31,2009 .My son is now 13 and his father just now got caught up on his back support.He has never paid any extra towards doctor bills,school or clothes. I am also trying to find an attorney to try to get it to so I can claim my son every year. At the time of my divorce I only agreed to the every other year because he was paying so much in child support.Since then my ex has taken me back to court and his child support was cut in half.I feel if we are taking care of our children and the fathers do not contribute that much why should thay get to claim the children on their taxes.Its frustrating.
Elizabeth-
It seems by now the “system” would have an easier affordable process to help responsible parents who are not at fault. I don’t understand if there is a court order in place then why an attorney and court cost are necessary especially when there is obvious evidence to show the agreements are not being met. My son’s father is not only supposed to carry health insurance but pay 50% of all cost pertaining to our son like sports, school, etc which he does not. However, I do get child support only because it’s garnished but when he swaps jobs (often), I have to go through an attorney to establish his employment which takes time and money. In the meantime I’m not getting child support so I have to figure out how to pay court costs. What’s the point of these court orders if we don’t have to abide by them? The last time I tried to modify child support (he was in contempt), it turned into another three year court battle and the outcome was basically the same as before because I couldn’t afford it. I’ve been in court off and on for ten years. My son is 10 btw. In the beginning I initially agreed to certain situations because I was young and not properly informed nor did I know how the future would carry out as far as his father’s actions. I’ve paid thousands of dollars to not one but two attorney’s who could have cared less about us and keep in mind I was a single mom working two jobs and going to school. So I paid with my tax returns. Being older now, I have several friends in the same situation and I can’t give them any advice or encouragement except to not let it ruin you. It’s incredibly sad and heartbreaking. Thanks for sharing your story Elizabeth. I wish you well!!
If my X girl friend claim my son for taxes. and we have legal joint custody of him. Am I entitled to half of the child credit
Hello, My wife and i are currently seperated i want to know once we are divorced can i still claim 2 of our 4 children on my taxes as i have been since they have been born? she now lives in another state. I also want to know can she let anyone other than me claim the kids just being spiteful? if not what questions or demands can i ask for in our court hearing which i go to see the lawyer next month to file for a divorce? Help please Thanks
My husband and I have always claimed his 2 children from previous marrige on our return, The ex has always let us because she has 2 children from another marrige that she claims. This year with the new tax law she claimed another one of our children so she could get more back, We have already filed claiming both children but the ruturn has not been accepted yet (new house credit takes longer) What is going to happen now? ( her taxes have already been accepted and money spent)
My ex husband and I alternate years claiming our son on our taxes. This year is his turn. Can I still claim the daycare expences that I paid even though I don’t have my son listed as a dependant? or is there a way to add him as a dependant and not get the child tax credit? Please advise.
I am divorced and have two sons, ages 22 and 20, who live at home with me. They have only worked part-time the entire year and the total made among them is less than $2500. They do not attend school. I have supported them the entire year. Can I clain them as dependents on my federal income tax form?
Thanking you in advance.
In Feb 2009 my 16 year old daughter moved from her mothers house to reside full time at my house. The child support order I was paying was cancelled. My 16 year old stays overnight with her mother 2 to 3 nights per week. In the divorce decree it states that I would claim our eldest daughter and my ex would claim our now 16 year old. Our eldest is now 23 and I have not claimed in for many years. I tried to speak with my ex regarding who should be able to claim our 16 year old since I am now the custodial parent. She would not discuss the matter with me. All financial support for my 16 year old is provided by me and I have not sought child support from my ex. I have filed my tax return claiming my 16 year old and now my ex is claiming to start legal action against me. I feel she has no right to claim our daughter.
You should probaly get it changed in your divorce decree. I have the same problem it states that my ex can claim our son every other year if he is caught up on child support. He just got caught up after 13 years. Still do not think he should claim him since he has had his child support cut in half and I pay all medical,school,food and clothes.Plus when your child turns 16 you do not get the extra money back for them when you file taxes.
My 1996 divorce decree states verbatim: “The parties stipulate to continue to alternate the dependency exemption relative to child with petitioner being allowed to claim child on odd numbered years and co-petitioner being allowed to claim child on even numbered tax years.”
Does that statment meet the 3 of requirements listed on form 8332 under special rule for children of divorced or separated parents under the exception for post-1985 and pre-2009 divorce decree thus allowing a non-custodial parent to claim the exemption even though child support terminated 3 months into the year and the child has not had any overnights with non-custodial parent in over 2 years.
I have claimed both of our children on my taxes for the last 4 years. We have had 50% custody until October of 2009. She has claimed both kids on her 2009 taxes. I work and she does not. Do I have a case?
My wife and I were divorced in 2003. Our divorce agreement stated that I would claim our son and my ex-wife would claim our daughter for federal tax purposes. No problems until this year when she claimed them both.Her mother,a paralegal, who does her taxes claims new laws allow her to do this.The way I read the law is divorces pre 2008 can still use their divorce decree without having to use form 8228? Even if she could do this,I see the law also states you have to give the non-custodial parent one years notice in writing before you can claim them on your taxes.Example she notifies me for the 2009 year she can claim 2010.This is causing us many arguements and I would like to resolve this issue.Help!
i have been divorced since 1997.we have 2 children he claimed one and so did i .its been that way for 13 years now that one is 18 he wants to rotate the other child. i have solo custody of them both.i have already filed my taxes in jan.2010 and now he is stating he is going to claim her too. what do i do ? i have always claimed her .and he hasntpaid one dime in child support this year.
A) Can a son claim his mother who has not legaly been separated and she has no income. Mother lives with Son and he provides her full support.
B) Does the mother has a filing requirement?
My boyfriend had a son in 2009. We live together and he plans to file as head of household as we meet all the requirements. He does not want to claim him as a dependent because his AGI will not allow him to receive a deduction. Can I still claim my son as a dependent even though he claims head of household?
I just filed my taxes online and it was rejected because it says that my dependent was claimed on someone elses taxes. I found out that my ex claimed our daughter but I have the forms stating that I am the custodial parent and I have the right to claim her because she lives with me. Is there an additional form I have to fill out and submit seperately so I can claim her as a dependent? Thanks
my son’s father lives in CO and we live in NY. He owes me over $4400 in child support. I am the custodial parent. He wants me to claim our son on my income tax and told me that by allowing me to claim our child that will make up for the money he owes me. Is this correct?
My husband attained a divorce without me being present. He not only was able to pay minimal support but add a clause stating that he be able to claim our children on his taxes even though i am the custodial parent and i contribute more than half for their needs. Obviously not being present, i did not sign the decree. How can i legally claim my children and do I have any recourse for the past 4 years?
I am divorced, my x husband lives in California, I live in Louisiana, I claimed my daughter this year on tax return, my x husband says he is going to claim my daughter, I do not want to get audited what do I do now, I have already received my tax refund. I feel I support my daughter just as much as he does
I have a daughter. Her father and I have joint custody. I work and have always had income. He has no income and hasn’t for several years. He has been the one claiming her for the past few years or at least his wife has. They have been married for several year and so have I. I claimed her for my 2009 taxes and he wants to claim her for the 2010 tax year. Can he do this if he has no income? Or can his wife if she is the one with the income in their household?