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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@daniellebarratt2337 wrote:

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 ? 

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If there is a conflict between the parents, the IRS will not honor a divorce agreement signed after 12/31/2008.  However, the family court in your state can issue orders or penalize a parent for not following their order.

If the father has custody of all 3 children for more than half the year, then under federal law and IRS regulations, the father can claim all 3 children as dependents.  If the father and mother's tax returns conflict, the IRS will investigate and, if the facts are what you say, the IRS should award all 3 dependents to the father and the mother will have to repay any disallowed benefits or credits.  However, this will violate the court order, and you should never violate a court order without competent advice from your own attorney.

To file a return that is compliant with the court order, the father would indicate in Turbotax for child #1 and child #2 that he had custody more than half the year, and that he will give the other parent a signed form 8332 so the other parent can claim the children as dependents.  The father will still be able to use child #1 and 2 to qualify for EIC, head of household, or the day care credit, if those situations apply.  But the father will not get the $2000 child tax credit for those children.  Mail the form 8332 to the other parent (keep a copy for your records).  You will still probably be unable to e-file since the other parent claimed the children without form 8332 and that will still conflict.  When the IRS investigates, the other parent will keep the child tax credit if she has the 8332 but she will lose HOH, EIC and the dependent care credit, if she claimed them. 

You may also want to go to family court to modify the order.

[daniellebarratt2337]

there is a new custody order in place and it doesn't mention anything about who gets to claim what kids. The mother has claimed them 3 years in a row and the father mails in his paper return. The father always get his return and I'm guessing the mother is still getting it as well. Because she keeps doing it every year. 

[Opus 17]

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@daniellebarratt2337 wrote:

there is a new custody order in place and it doesn't mention anything about who gets to claim what kids. The mother has claimed them 3 years in a row and the father mails in his paper return. The father always get his return and I'm guessing the mother is still getting it as well. Because she keeps doing it every year. 

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If the father claim all 3 kids and the IRS investigates, and the mother shows an old order and the father shows a new order, the IRS should really ignore both orders and go by physical custody.  Then it comes down to what happens if the mother complains to the family court judge that the father is violating the arrangement in the old order.  If the judge agrees with the mother, the judge can make life miserable for the father.  But that's up to the judge and maybe your attorney to advise you, on whether the more recent order completely cancels and negates the income tax part of the old order. 

Note that because the IRS will not follow the court order if an investigation is done, you will want other proof that the children lived in the father's home.  The IRS especially likes letters from reliable third parties sent to the father's address showing the children live there.  Like letters from doctors about appointments or test results, letters from school districts about grades and bus routes, and other things like that which show the children live in the father's home most of the time. Photos of birthdays and family activities, social media postings, and other things may also help prove where the children live. 

[daniellebarratt2337]

should Dad send that type of documentation in when He mail in the paper form ?

[Opus 17]

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@daniellebarratt2337 wrote:

should Dad send that type of documentation in when He mail in the paper form ?

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No, it will most likely get lost.  Wait for the IRS to send their letters, usually it takes them 6-9 months to get going.  The tax return just goes to a data punch operator to type in the numbers.  Later, when it is actually assigned to an office for investigation, there will be a human being waiting for the reply to the investigation letter. 

[daniellebarratt2337]

this will be year 3... wonder when the IRS will finally catch it 

[samanthayoung320]

This isn't true at all.  I used my 2014 parenting order to get my refund two years ago.  Looks like I'm either going to need to hold him in contempt or file with my order again this year because he did it again.  

[Opus 17]

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@samanthayoung320 wrote:

This isn't true at all.  I used my 2014 parenting order to get my refund two years ago.  Looks like I'm either going to need to hold him in contempt or file with my order again this year because he did it again.  

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I can only tell you what the IRS instructions say.  If a particular employee ignores those rules, I can't help it.

The other thing is, the court order is used by the non-custodial parent to claim the dependent even if they don't have custody.  In the case where you had actual custody for more than half the year, that's the only thing you need to prove.  You don't also need to prove a court order telling you that you can claim the dependent. 

[Lia073185]

If the judge asked me to sign form 8332 can I put in the

form that I’m releasing my right to claim child in threat of being held in contempt of court

[Lia073185]

I have a question 
If a state judge final judgment was that the non custodial parent claim Child Federal tax Exemption every other year but the child spends 290 overnights with custodial parent ( mom). Non custodial parent is current in his child support which he is paying 43% of financial support according to it and 57% mom and also the timesharing agreement proof mom spends most of the year with a child. What happens if father file a motion for contempt of court because I claimed child as dependent. If judge make me sign 8332 can I notate on the formed the reason I’m signing it is because im threatened to be held in contempt if i refused to sign?

[Opus 17]

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@Lia073185 wrote:

If the judge asked me to sign form 8332 can I put in the

form that I’m releasing my right to claim child in threat of being held in contempt of court

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It won't matter.  If you sign the form, the other parent is allowed to claim the child as a dependent.  You won't get anything by adding commentary.  The IRS doesn't care about your custody dispute or that you are unhappy with the judge. 

[Lia073185]

Can I refused to sign it?

[Opus 17]

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@Lia073185 wrote:

I have a question 
If a state judge final judgment was that the non custodial parent claim Child Federal tax Exemption every other year but the child spends 290 overnights with custodial parent ( mom). Non custodial parent is current in his child support which he is paying 43% of financial support according to it and 57% mom and also the timesharing agreement proof mom spends most of the year with a child. What happens if father file a motion for contempt of court because I claimed child as dependent. If judge make me sign 8332 can I notate on the formed the reason I’m signing it is because im threatened to be held in contempt if i refused to sign?

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No one here can answer questions about your state court.  If you are unhappy with your custody or financial arrangements, you need to talk to the family court judge handling your case, preferably with competent legal advice. 

The IRS follows federal tax law, which is above and separate from state laws and financial arrangements in custody cases.  Federal tax law says the parent with custody more than halve the nights of the year can claim all dependent benefits.  The non-custodial parent can only claim the child tax credit if the custodial parent signs a form 8332 releasing the dependent claim, or a similar written statement that contains all the necessary information.  The custodial parent can still use the child to qualify for EIC, head of household and the dependent care credit, and the custodial parent can't claim those tax benefits even with a signed form 8332.

If you sign the form, the IRS doesn't care why you signed it.  Stating that you signed "under protest" is not going to do anything for you with the IRS. 

[Lia073185]

I already claimed my child as dependent. And the father already filed to ask judge to held me in contempt. In this situation can I be incarcerated :(

if held in contempt of court? 

[Opus 17]

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@Lia073185 wrote:

Can I refused to sign it?

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If you have been ordered to sign, and you refuse, then you are violating the order of your family court judge.  The IRS doesn't care, because the IRS follows federal law.  But judges have considerable power to enforce their orders and can make your life very unpleasant if you refuse to follow their orders.  I would not recommend violating a court order unless you have competent legal advice telling you to do so.