Tax Year Prior to 2020: My ex claimed our child, but our court order says I'm supposed to claim her. Can I e-file without claiming her and then mail an amendment once it's available?

[xmasbaby0]

@Stacylkh 

The IRS does not care about the court order.  As far as the IRS is concerned the custodial parent is the one who can claim the child--and that is the parent who had the child for at least 183 nights.  You can prepare a tax return that claims your child and print sign and mail it and let the IRS sort it out.   You say you got a letter from the IRS, but you provide us with no information about what that letter said.  TurboTax does not have a way to see any letters sent to you by the IRS.  

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit + education credits if the child is a full-time college student.  The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[Anonymous]

there are exceptions to having to file form 8332.  A statement containing all the information as form 8332 can be used, but the Tax Court has denied claiming by noncustodial parents when substitute documentation did not contain all the information as required by the form (Burke, TC Summary Opinion 2003-147) reg 1.152-4(e)(1)(ii)

another exception under reg 1.152-4(e)(5)

Written declaration executed in a taxable year beginning on or before July 2, 2008. A written declaration executed in a taxable year beginning on or before July 2, 2008, that satisfies the requirements for the form of a written declaration in effect at the time the written declaration is executed, will be treated as meeting the requirements of paragraph (e)(1) of this section. Paragraph (e)(3) of this section applies without regard to whether a custodial parent executed the written declaration in a taxable year beginning on or before July 2, 2008. 

in effect, a copy of the divorce or separation agreement that meets the requirements above can be used.

note that the taxpayer says they were divorced in 2006.  however, it's not possible to e-file since the substitute documents can not be attached as required by reg 1.152-4(e)(2)  

[Hal_Al]

@Stacylkh 

It sounds like you got two letters from the IRS (one for 2018 and one for 2019) " saying not to do anything if you have the rights to claim her". The letter also (usually) said to file an amended return if you did not have that right.  Your ex got (usually) the same letter.  If neither of you file an amended return, you will both get a 2nd letter from the IRS.  At that time, you will have to prove you have the right to claim her, by  showing she lives with you and the new court order.

On the other other hand, if the 2nd IRS letter is the one asking for proof, then yes, you now  send the IRS your proof,

[Stacylkh]

I haven’t received the letter yet but I’m assuming this is the issue because they are holding my refund and the IRS person said that a letter  was sent out on the 27th I have no other tax issues, my taxes are very straightforward. I guess what I want to know is if he will win the right to claim her because the 2006 divorce decree said he could, even though the new court order says Im supposed to get her 2018 and 2019. Also he hasn’t seen her since April 2018 and I’ve always been the custodial parent. Will I  just have to prove she lived with me etc? I’m just worried they will only look at the old divorce decree. 

[Stacylkh]

And yes this would be the second letter regarding this issue. So this time I’m assuming it’s to prove who has the right to claim her. 

[xmasbaby0]

@Stacylkh You are asking strangers to predict what an IRS letter will say.  Wait for the letter --- which you say was recently mailed.  

[Stacylkh]

I guess what I really want to know is how much importance that 2006 divorce decree will have over everything that’s happened since and I’m the custodial parent.

[Opus 17]

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@Stacylkh wrote:

I haven’t received the letter yet but I’m assuming this is the issue because they are holding my refund and the IRS person said that a letter  was sent out on the 27th I have no other tax issues, my taxes are very straightforward. I guess what I want to know is if he will win the right to claim her because the 2006 divorce decree said he could, even though the new court order says Im supposed to get her 2018 and 2019. Also he hasn’t seen her since April 2018 and I’ve always been the custodial parent. Will I  just have to prove she lived with me etc? I’m just worried they will only look at the old divorce decree. 

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Some of my colleagues missed the fact that the divorce was settled in 2006; for divorced finalized before 12/31/2008, a non-custodial parent can claim a child as a dependent by attaching certain pages from the divorce agreement, form 8332 is not necessarily needed.

What is not clear to me is how this grandfathered rule is affected by the 2018 modification.  It's not a situation I have seen before, and I would have to look up the regulation or the IRS audit manual for the issue and that's what you would pay a professional for.  I assume that your ex claimed the child for 2018 and 2019 by attaching copies of the original 2006 divorce decree and did not admit or mention the modification.

There are of course two basic possibilities; either the IRS ignores the 2018 modification, or they respect the 2018 modification.  If the IRS respects the 2018 modification, then to claim your child as a dependent for 2018 and 2019, you would need to be prepared to show the IRS both proof of residency and a copy of the 2018 modification that invalidates the 2006 order.  If the IRS does not respect the 2018 modification, then you probably will not be allowed (by the IRS) to claim that child, and you will have to go back to family court to recover damages from your ex.  Unfortunately, I don't know the audit procedure for this specific situation.  I suggest that, if the IRS asks for more information (or if they deny the dependent claim, you have a right to appeal) that in your communications or appeal you provide both proof of residency and a copy of the divorce modification. 

[Diamondpr]

Just for clarification...My ex is entitled to claim our son this year per court, he didn't once exercise his rights. Ex was absent for the whole year. If he decided to claim, which I'm sure he will, he will be able to file our son by providing proof of court order? 

[Classy02]

Yes, if the court order says he is to claim your son and you do instead, you could be held in contempt of court, pay double damages, owe the IRS and money you received for claiming him including penalties and interest and a judge cpuld take away your right to claim the child indefinitely or at least for the next year you're entitled to. This isnt a tax issue, it's a legal issu. You cant violate a court order. If there's no visitation or contact whatsoever you can file for a modification to the current support order so that you can claim him every year until the father wants to be more involved. 

[Opus 17]

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@Diamondpr wrote:

Just for clarification...My ex is entitled to claim our son this year per court, he didn't once exercise his rights. Ex was absent for the whole year. If he decided to claim, which I'm sure he will, he will be able to file our son by providing proof of court order? 

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You have to ask the court to deal with that.  Under IRS regulations, if your ex has a pre-2009 divorce order that says he can claim a dependent, then he can claim the dependent.  You must ask the court to modify the order.

Specifically, the order must say 3 things:

1. that your ex can claim a child in specified years

2. that you won't claim the child in those years

3. there can be no conditions in the order.  If the order has conditions, such as the ex must see the child a certain number of days, or that child support must be current, then the order is invalid for claiming a child as a dependent even if those conditions have been fulfilled.

In Turbotax or a similar program, your ex would indicate that the child lived with him less than half the year, and that he is claiming the child as a dependent using a form 8332 dependent release or a pre-2009 divorce order.  He is entitled to the $2000 child tax credit or the $500 other dependent credit, depending on the child's age.  This year, he would also be entitled to a stimulus rebate.  However, you can still list the child on your return as they may qualify you to file as head of household or earned income credit, if you meet the other requirements for those benefits.  You would indicate the child lived with you more than half the year but the other parent is claiming the credit using a form 8332 or a pre-2009 divorce order.  (The ability to use a child for head of household or EIC always goes to the parent who has actual physical custody more than half the year and can't be waived, transferred or shared.)

Your ex will be required to mail a copy of the divorce decree to the IRS after e-filing the rest of their return.

Now, one more thing since we are talking about a 15 year old divorce -- once the child turns 18, the agreement can't be used to claim the child as a dependent.  All the "special rules for children of divorced or separated parents" end when the child turns 18, or is legally emancipated under state law if it happens at a different age.  From that point, only the normal rules apply, which means the parent where the child lives is the only one who can claim them as a dependent, assuming the child meets the other qualifications of age, full time student status, and support.

[Hal_Al]

Q.  He will be able to file our son by providing proof of court order? 

A. No, unless that court order is dated before 2009 and contains certain language.

As explained above, the IRS does not honor court orders, it only goes by it's own rules.  If you file a competing tax return, claiming the kid, the IRS will honor your return, not his.  His only remedy is to take you back to court for sanctions.  You would, most likely, be found in contempt of court. 

[Opus 17]

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@Diamondpr wrote:

Just for clarification...My ex is entitled to claim our son this year per court, he didn't once exercise his rights. Ex was absent for the whole year. If he decided to claim, which I'm sure he will, he will be able to file our son by providing proof of court order? 

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Just noticed you jumped into a long discussion involving several different people, and the facts that apply to them may not apply to you.

For a divorce order that was finalized before 2009 (12/31/2008 or earlier) the ex can claim the children according to the order, by attaching certain pages of the order to their tax return.

For a divorce order after 2008 (1/1/2009 or after) then the IRS goes entirely by where the child lived more than half the nights of the year.  That is the only parent automatically entitled to claim the child as a dependent, and the other parent can't claim anything unless the custodial parent gives the other parent a signed form 8332 dependent release.

However, if you refuse to sign the release as directed in your court order, your ex can take you to court and make your life miserable.  The court can force you to sign the release, and even throw you in jail for contempt until you sign, and the court can even do worse, such as to require you to sign the form for all future years, not just every other year.  Before ignoring a court order, get competent legal advice. 

[Diamondpr]

Our divorce was finalized in 2018, I never signed a 8332 form. 

[Diamondpr]

Thank you for all the information, it was very helpful! I will never be noncompliance with  a court, my ex has been absent and has not asked for signature, 8332 form. Thanks again!