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?

[Opus 17]

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@Diamondpr wrote:

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

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In that case, your ex can claim nothing unless you give your ex a signed form 8332; your ex can't claim the dependent using a copy of the divorce decree.

However, if you refuse to sign the form 8332, you will be violating the court order, and if your ex takes you to court, the consequences could be grave.  Don't ignore or violate a court order without qualified legal advice. 

[Diamondpr]

Thank you! 

[Opus 17]

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@Diamondpr wrote:

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!

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You may want to send one.  Here's what will happen:

You can list your child on your tax return, state the child lived with you more than half the year, and you are giving the other parent a form 8332.  The child will still allow you to qualify for EIC, head of household status, and the dependent care credit (if you meet the other qualifications) because those benefits can't be shared or transferred.

Your ex is supposed to say in their tax program that the child lived with them less than half the year and they are claiming the child because of a form 8332.  They will get the child or dependent tax credit but will not qualify for EIC or head of household.  They must mail the 8332 to the IRS after filing.  IF you both do this correctly, the IRS will have no problems.  

If your ex does not ask for form 8332, the only way they can claim a dependent is if they lie and say the child lived with them.  This may cause them to claim extra tax benefits that are not allowed, and it will cause a conflict with your tax return that may cause one or both returns to be rejected and may trigger investigation letters from the IRS.

You want to send your ex a signed form 8332, possibly by registered mail, so that when the IRS come calling, or his attorney blames you for something, you can say "I did everything by the book and it's not my fault if my ex screwed up."

By the way, all these rules are in IRS publication 501. https://www.irs.gov/forms-pubs/about-publication-501

[Diamondpr]

Noted! Extremely helpful information...I will definitely get this going. Thanks again!

[Lakergirl2000]

My son turned 18 in Jan 2020 and moved in with me. I claimed him on my taxes but my ex believes he has the right to claim him because our divorce decree from 2008 stared he had the right to claim the children. Since he is 18 and the fact that he spent more than half of the year with me should grant me the ability to claim HOH and him as a dependent. Correct? 

[Alwhitley22]

The irs doesn’t care about a court order. They go by who the child has lived with the most for that year and whichever parent the child has spent with the most that’s the parent who has the right to claim the child. 

[Opus 17]

If you read publication 501, it says that the special rules for children of divorced and separated parents are dissolved when the child is emancipated—which in most states is when the child turns 18.  The child is not considered to be in the custody of either parent, the court order no longer applies, and no one claims the child as a dependent.  The child files their own return and answers “no” to the question, can someone else claim you as a dependent this year.”  See example 5 on page 13 here 

https://www.irs.gov/pub/irs-pdf/p501.pdf

(In 2020, that will get the child an $1800 stimulus rebate even if they did not work. You will need to file an amended return to remove the child from your return and the child will have to file by mail since your prior claim will block their attempt to e-file. If the child has already filed a tax return, they will also have to file an amended return.)

[Empires2build]

File your return on paper and claim your child. Send it in the mail along with a copy of your court order. We have had to do this several times until we finally filed contempt charges on her. They will process your filing and penalize your ex

[Empires2build]

Sorry but that is not true. Not only can the parent in violation be charged with contempt but the IRS charges heavy penalty and the parent who wrongfully filed can loose their right to unearned income credit filing for the rest of their life if they do it more then once. You should consult a good tax professional who can explain claiming as dependent and claiming them because they live full time with you

[Empires2build]

This works differently when there is an order stating the parent that the child DOES NOT live with can claim them as a dependent. Even when the child lives full time with the other parent the court has granted the other parent right to claim. If there is no order then you have to pay the game you've mentioned. 

[Opus 17]

The simple fact is no one claims the child anymore. Read publication 501 and example 5.

[daniellebarratt2337]

I got a good one for ya... 

The divorce decree says the Ex wife gets to Claim the 2 oldest kids and dad gets to claim the youngest. Mom had custody at the time of the divorce dad now has custody. Mom is still claiming the oldest 2 kids which I don't see as being fair. When dad goes to file his taxes claiming all the 3 kids because he has custody and supports them 12 months out of the year the return is kicked back because mom has already claimed them. Dad mails in a paper return and still get his income tax. What is the legal way to handle this? Does the court document override the IRS rules of who supports them at least 6 months out of the year ? 

[Opus 17]

@daniellebarratt2337 

When was the divorce decree and custody order signed?

[daniellebarratt2337]

divorce was 7/18/2013 

[daniellebarratt2337]

custody was done at the same time. But the father took custody of the kids and is now the custodial parent as of 10/30/2018