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?

[Empires2build]

You can but its easier to claim her and send a copy of your court order with your filing and mail it in. If your in a hurry, I've even overnighterd mine before. Its the same time as e file, I believe 

[whodey6879]

What if my daughter is 18 and she has lived with me the entire year? She is currently in college and her mother lives 1200 miles away?

[Hal_Al]

@whodey6879 

  If the child lived with you, you are the custodial parent. The question is answered, above.

But what are the other details? You say "She is currently in college".  Does that mean she lived with her mother, but now lives with you only because you're closer to the college? That could be considered a temporary absence and her mother is still the custodial parent.

[Classy02]

Similar to the original poster but different. My husband and I are married and file jointly. His extramarital affair resulted in a child who is almost 4 years old. In court he was ordered to pay child support, she got full custody and he was awarded visitation and they both are supposed to provide medical coverage pay 50/50 medical expenses and claim her every other year. Our return was rejected electronically because she already the child on a year she shouldn't have. He text her to adk her amend it but she got combative, said she didn't give a f*#k what the order said and she will claim her every year no matter what. She then said she would get a restraining order if we contact her again. 

My husband is not the custodial parent and hasn't ever met his daughter because the mother always threatens restraining orders or tries to physically attack my husband whenever there is any communication. A lawyer has sent a letter to her informing her to sign and return it but she hasnt really agreed to do so yet. We only have a few days left to file. We have said we will take her to court for contempt and have a judge force her to sign but will it end up working out that way if my husband hasnt had any contact with the child. The mother believes it will go in her favor regardless of what the court order says. 

[Hal_Al]

@Classy02 

Taxwise, your answer is simple; you file without claiming the child. As far as the IRS is concerned, he has no right to claim the child.

If, after the legal hassle is over, and you are awarded the right to claim the child, you file an amended return to add the dependent and the child tax credit.  

Your alternative is to claim the child but you will have to file a paper return.  The consequence have been explained above.  The IRS will eventually, most likely, rule against you and probably complicate things when and if you finally get a court to force her to comply.

You have a legal issue not a tax issue.

[Classy02]

A follow up question to that is, if she does sign the 8332 form in the next couple days can we send that with our tax return? Are there any consequences for that?I understand that it may become a legal issue if she doesnt comply with our attorney's letter demanding she co.olete the form, but I want to make sure there's no issue if she does comply. 

It's  a little confusing when a state court orders one parent full custody but orders both parents to share claiming a dependent when the IRS doesnt care what a court ordered. Can I send the court order with our return also?

[Hal_Al]

@Classy02 

Yes, you must send the form 8332 with your tax return. You still will not be able to e-file, so you will have to mail in your return (with the 8332).

Do not include a copy of the court order. The IRS only cares about the 8332.

"It's  a little confusing when a state court orders one parent full custody but orders both parents to share claiming a dependent when the IRS doesnt care what a court ordered."

The IRS got tired of trying of refereeing  this situations and having to interpret varying local court documents, so they had congress change the law in 2008.  Now,  all you need is form 8332. A good court order should mandate that the custodial parent provide that form.  

[bryan0819]

I have a similar issue to Classy02. I am the non-custodial parent, paying child support, but now living apart from my child. His mother and I were never married. The pre-2008 child support agreement states that I can claim him as a dependent in odd years. (It's a court order, entered in 2005). I recently tried to e-file my 2019 return, but it was rejected because he was already claimed. I removed him as a dependent and am now trying to determine if I should file an amended return with his information. I can provide a copy of the agreement. 

[Hal_Al]

@bryan0819 

As indicated, earlier in this thread, the court order (dated before 2009), must be without conditions ( usually the payment of child support).  The IRS will not accept a curt order, with conditions, even if you are in compliance. 

If that  is the case, yes you can file an amended return, attaching copies of the relevant pages of the court order, including the first page and the signature page.

Another issue is how old is the child. That is, is a 2005 court order still valid, if the child has reached the age of emancipation. 

[bryan0819]

Thank you @Hal_Al . I’m pulling out the order, but if I remember correctly it says that I pay $x per month, agree to carry health insurance if available, we have joint custody, and I can claim the child in odd years and her in even years. The tax provision does not read like it’s conditioned. 

The child is not emancipated and won’t be for another two years. One thing I did want to clarify is that this is a child support order only. We were never married, so it’s not a divorce decree. It went through family court and the document I have is from the state. Same rules apply?

[Hal_Al]

@bryan0819 

Yes, same rules apply.  I should have used the words "court order" rather than "divorce degree".

A previously noted, in this thread, for tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. The IRS goes by physical custody, not legal custody.  Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent (or a court order) has released  the dependency, and child or other dependent tax credit,  to him. 

[Opus 17]

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@bryan0819 wrote:

Thank you @Hal_Al . I’m pulling out the order, but if I remember correctly it says that I pay $x per month, agree to carry health insurance if available, we have joint custody, and I can claim the child in odd years and her in even years. The tax provision does not read like it’s conditioned. 

The child is not emancipated and won’t be for another two years. One thing I did want to clarify is that this is a child support order only. We were never married, so it’s not a divorce decree. It went through family court and the document I have is from the state. Same rules apply?

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Post-1984 and pre-2009 divorce decree or separation agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
2. The custodial parent won't claim the child as a dependent for the year.
3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

• The cover page (write the other parent's social security number on this page).
• The pages that include all of the information identified in items (1) through (3)
• The signature page with the other parent's signature and the date of the agreement.

[Patrick091975]

I was in court earlier this week. My ex-wife is supposed to allow me to claim 2 of our 3 sons per our 2012 court order.  I had to get my attorney involved as we are still waiting (waiting since 1/31/20 as Jan 31 is the deadline on our court order for her to sign the form). She did sign for 1 son in June 2020, but refuses on the other.  We have another court date in late August now because she was a no-show to our court date earlier this week but what penalties can be brought against her? She did claim the other son on her taxes for 2019.  I am asking for attorney's fees too for defiance. We have been divorced since 2012 and this is the 2nd year she has been resistant in signing the IRS form (she lost in court last year but this was resolved before April 15 in 2018).  Also, I noticed she did not claim any maintenance (over $25k) on her 2019 taxes either.  Thank you in advance.

[Opus 17]

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@Patrick091975 wrote:

I was in court earlier this week. My ex-wife is supposed to allow me to claim 2 of our 3 sons per our 2012 court order.  I had to get my attorney involved as we are still waiting (waiting since 1/31/20 as Jan 31 is the deadline on our court order for her to sign the form). She did sign for 1 son in June 2020, but refuses on the other.  We have another court date in late August now because she was a no-show to our court date earlier this week but what penalties can be brought against her? She did claim the other son on her taxes for 2019.  I am asking for attorney's fees too for defiance. We have been divorced since 2012 and this is the 2nd year she has been resistant in signing the IRS form (she lost in court last year but this was resolved before April 15 in 2018).  Also, I noticed she did not claim any maintenance (over $25k) on her 2019 taxes either.  Thank you in advance.

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Unfortunately there is nothing you can do to force her to sign the 8332 form that is different than what you are already doing.  If she is refusing to follow a court order, the court has the ability to punish her directly (like, "sign here right now or go to jail for contempt until you sign.")  You might bring some extra copies of form 8332 for the current and future tax years already filled out and ready to sign, so the judge can order her to sign them in the judge's presence if the judge thinks that is needed.

Child support is not taxable to your ex or deductible by you.

Spousal maintenance (alimony) is deductible by you and taxable to her, for a 2012 order, unless the order was modified after Jan 1, 2019.  If the order was modified after Jan 1, 2019, the parties have the option of making the alimony non-taxable to her and non-deductible to you, or leaving it as taxable/deductible.

If you report an alimony deduction on your return and your ex does not report alimony income, that mis-match should trigger automatic IRS letters to both of you, requesting proof. If you send in proof of the alimony payments and a copy of the court order, the IRS should bill her for the back taxes.  

Since each child dependent is worth a $2000 tax credit until age 16 and a $500 credit after that, it might be worth considering to negotiate a $4000 reduction in child support and then agree to let her claim the children every year and not have to keep going to court to get the forms signed.  

[Stacylkh]

I have a question about the divorce decree dated before 2009. On that decree Dated 2006 my ex was allowed to claim my youngest daughter. Then we went back to court in 2018 and the judge awarded me the year 2018 and 2019 as rights to claim her. He hasn’t seen her since April 2018 and before that only twice a month.  I filed for those 2 years and got a letter saying not to do anything if you have the rights to claim her. Letter dated Jan 2019. Now here we are again and he claimed her for 2019 and I’m getting another letter from the IRS. Will that old divorce decree be cancelled out by the new court orders? I’ve always been the custodial parent even when he saw them every other weekend. I pay more than 50% of her living expenses as well. Will I just have to show she lives with me and the new court order???