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?

Yes, you can do that but you don't want to.

There are several things you need to be aware of:

1. The IRS doesn't care about your court order, unless it is dated before 2009. The IRS goes by it's own rules and will award the dependency to the custodial parent, if both parents try to claim the child. Your only remedy against the ex is to take her/him back to court for sanctions

2. If you are the custodial parent and If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.  

If I am reading this correctly, If somebody got divorced in 2012 and in the divorce degree states the non-custodial parent gets to claim SOME of the kids on his taxes.  He still can not claim the kids unless the custodial parent signs form 8332?

Correct. However, the Family Court can compel the signing of Form 8332.

Yes, you could do it that way.

Or, you could paper file and claim her now.

You will not be able to efile with her on the return because the return will be rejected since your Ex has already claimed her.

Be prepared to supply documentation of your right to claim your daughter when the IRS asks for it.

What would be an example of documentation to claim a child when the IRS asks for it?

Simple answer: there is no documentation, other than a signed form 8332, that will convince the IRS to allow you to claim the child.

The one exception is a court order dated before 2009. From IRS Pub501: 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 will not 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)above
• The signature page with the other parent’s
signature and the date of the agreement

If my court paper work stated I am to claim child as dependent and my ex did, will court documents be approved if the form 8332 was not filled out by me. ?

Yes you can do that if you need to. You can file your federal and/or state tax returns without claiming your dependent and then file an amended return claiming her once the amended returns are available.

You should not try to amend your return until the original return it has been fully processed and you have received your refund or your payment has cleared.
Amended returns do not “catch up” to your original return and replace them; they are processed as two separate returns.  
 

Amended returns have to be printed and filed by mail.  It can take the IRS up to 12 weeks or longer to process them.   If you are due a larger refund than on your original return, your amended return should only show the difference and you will receive a separate check for it.  If you owe money on your amended return, it will show only the new amount owed, you will have to mail a check with the return.

You can check the status of your amended return by clicking here: https://www.irs.gov/filing/individuals/amended-returns-form-1040-x-/wheres-my-amended-return-1

Click here for amending instructions: https://ttlc.intuit.com/replies/3288565

So you are saying the IRS will still issue my refund at the normal time if my ex claimed our child without consent and I had to file mine through the mail?

If you file your return via mail it could take 6 weeks or more for the IRS to process your return.  This is from the IRS Where's My Refund Site:

The IRS issues most refunds in less than 21 days, although some require additional time. You should only call if it has been:

• 21 days or more since you e-filed
• 6 weeks or more since you mailed your return, or when
• "Where's My Refund" tells you to contact the IRS

Here is a link to the Where's my Refund Page: Where's my Refund

It can take 8 weeks for more for IRS to process Amended Returns.

Here is a link to the Amended Return Status Page on IRS.gov:  Where's my Amended Return?

I have a question my child custody papers says that my ex is allowed the income tax dependency deduction for my daughter.  Even though... I am the custodial parent.  Does that mean that I can claim my daughter for earned income credit??  I read an article that said there was the rule that the non-custodial parent can never claim earn income credit, head of household, or daycare credit. Is that true?? 

Yes, only the custodial parent may claim the Earned Income Tax Credit and Child and Dependent Care Credit.  Here is an IRS link with more information.  In TurboTax to accomplish this when answering the dependent questions: 

• For number of months the child lived with you and in the US, the numbers should be greater than 6 months. 
• When asked if you have a custody agreement, divorce decree or other written agreement, answer "yes"
• When asked if your child's other parent will claim him/her this year per legal agreement, answer "yes" (the other parent will claim the child).

In doing so, TurboTax will include the child on your return for EIC, Head of Household if applicable and dependent care credit only.

My situation is slightly different, but I'm having the same fallout.

I am a stepparent to 2 children who spent 9 months of 2019 living with their father and myself (we are married). They had limited visitation with their mother in that time (no overnights). She regained 50/50 custody in Oct 2019 and then took full custody in November 2019. She has claimed them both on her taxes, my claim for them was rejected on e-file.

I file married filing separate due to my husband being a disabled veteran who gets VA benefits and they are not taxable.

By IRS rules it seems the children should be mine to claim for 2019. Am I correct and how do I appeal?

Thanks for any help.

If the children lived with you more than 6 months during that year then you are the entitled parent to claim them. You would just have to file through the mail claiming them and then a red flag will show up to the IRS that they were claimed twice and then they would send a letter out requesting the proof that the children lived with you for part of that year. Then the winner gets the money and the other parent has to pay back the irs. That is what I was told by the IRS when my ex husband claimed our daughter on his taxes without consent cause she lives with me full time. 

If you met all of the requirements to claim the dependents and believe they should be on your tax return, the proper way to file is to list them on your back, and file the return by mail.  As you have learned, the return will not go through the e-file system.  Alternately, you can remove them, e-file, and then file an amendment claiming them.

What happens next is the same -

When the IRS receives more than one return listing the same dependents, each taxpayer receives a request for documentation to support the claim later in the year.  The IRS will evaluate the documentation and make a determination about the return that is correct.  The taxpayer(s) who have the dependent(s) removed from their tax return will have an adjustment for the amount of tax and will be billed the tax plus penalties and interest.  If certain credits are part of the corrected return,  the taxpayer can be banned from claiming that credit for the next two tax years (or in some cases, ten years).  

@Jrherm5115

@SusanY1 @ Thank you for your information. I also have the higher adjusted gross income in addition to the greater than 6 months living time

Is the paper filing something that the average layperson (me) can do? Or should the tax preparer that was paid to do my e-file be the one I go back to for this?

I have a correlating question to that. my husband has it in custody order that he claims my stepdaughter while my stepson gets claimed by his ex wife. been this way for over 6 years.  she withheld my stepdaughter from us breaking custody order June of 2019. We file that child every year. we do have 50/50 and we covered all expenses while in court procedings.  We do have 50/50 custody. one takes one child and the other takes the other child. always been that way. So now, she decided to claim the child she is withholding from us while claiming the other child.  No granted also, we had my stepson more days than her. We both filed my stepdaughter because we always do and nothing changed. what should we expect . Im assuming this will be on her?

It will be on her. The irs doesn’t care who has 50/50. They wanna know who the child has spent the most nights with during the year. If the child has equal amount of time with both parents then the person with the higher income can claim the child but the money has to be split with the other parent. Either way if you are the qualified parent then the other parent has to have a tax consent form signed by you giving permission. It’s called the 8332 tax consent form. 

@Jrherm5115 The higher AGI is not relevant.  Custody, for tax purposes,  is more than 182 nights at your home. It's that simple (proving it on audit may not be that simple).

"Is the paper filing something that the average layperson (me) can do?"  TurboTax still prepares your tax return, the same one you woulda e-filed.  You just print and mail it.  

"Or should the tax preparer that was paid to do my e-file be the one I go back to for this?"  Yes, he shoulda printed you two copes; one to sign and mail. The other is your file copy.

"I file married filing separate due to my husband being a disabled veteran who gets VA benefits and they are not taxable."  That's just plain wrong.   VA benefits are not taxable and they are not reportable. But, your spouse does not have to have income to file a joint return with you.  You may and should  file a joint return even if only one of you has no income.

Although a step parent has the same tax rights as a biological parent, your case is still stronger claiming the child on a joint return, rather than a Married filing separately (MFS) return.

_________________________________________________________________________

If you choose married filing separately as your filing status, the following special rules apply. Because of these special rules, you will usually pay more tax on a separate return than if you used another filing status that you qualify for.

1. Your tax rate generally will be higher than it would be on a joint return.
2. Your exemption amount for figuring the alternative minimum tax will be half that allowed to a joint return filer.
3. You cannot take the credit for child and dependent care expenses in most cases, and the amount that you can exclude from income under an employer's dependent care assistance program is limited to $2,500 (instead of $5,000 if you filed a joint return). For more information about these expenses, the credit, and the exclusion see Pub 17, Chapter 32.
4. You cannot take the earned income credit.
5. You cannot take the exclusion or credit for adoption expenses in most cases.
6. You cannot take the education credits (the American Opportunity credit and the lifetime learning credit), the deduction for student loan interest, or the tuition and fees deduction.
7. You cannot exclude any interest income from qualified U.S. savings bonds that you used for higher education expenses.
8. If you lived with your spouse at any time during the tax year:
a. You cannot claim the credit for the elderly or the disabled,
b. You will have to include in income more (up to 85%) of any social security or equivalent railroad retirement benefits you received, and
c. You cannot convert amounts from a traditional IRA into a Roth IRA.
9. The following deductions and credits are reduced at income levels that are half those for a joint return:
a. The child tax credit,
b. The retirement savings contributions credit,
c. Itemized deductions, and
d. The deduction for personal exemptions.
10. Your capital loss deduction limit is $1,500 (instead of $3,000 if you filed a joint return).
11. If your spouse itemizes deductions, you cannot claim the standard deduction. If you can claim the standard deduction, your basic standard deduction is half the amount allowed on a joint return.

You may not be able to deduct all or part of your contributions to a traditional IRA if you or your spouse were covered by an employee retirement plan at work during the year. Your deduction is reduced or eliminated if your income is more than a certain amount. This amount is much lower for married individuals who file separately and lived together at any time during the year.

If you actively participated in a passive rental real estate activity that produced a loss, you generally can deduct the loss from your non-passive income, up to $25,000. This is called a special allowance. However, married persons filing separate returns who lived together at any time during the year cannot claim this special allowance. Married persons filing separate returns who lived apart at all times during the year are each allowed a $12,500 maximum special allowance for losses from passive real estate activities.

Reference: https://ttlc.intuit.com/community/married/help/is-it-better-for-a-married-couple-to-file-jointly-or-separately/00/25590

I’m on a similar boat but just a bit different, in my divorce and custody papers it states that my ex and myself will claim one child each every year (2 children total) and she had gone to claim both. Is this a punishable act by the IRS OR Family Court if I were to take it there?

Yes. The IRS will only grant one dependent deduction per social security number. I defer to the advice of your divorce attorney for your recourse in Family Court.

If your ex would agree to amending her filed return immediately and only claiming one child, she will save herself penalties and interest and lengthy correspondence with the IRS.

You, in the mean time, can properly file your tax return by mail claiming one child as agreed. The filing will take about 16 weeks for the IRS to process. It would be useful to get Form 8332 signed for the noncustodial parent from the custodial parent.

To find this form in TurboTax, follow these steps:

• From the left menu, select Federal>
• Other Tax Situations (third tab across the top)
• Scroll down to All Uncommon situations and find Other Tax Forms and click Show more
• Find Revocation of release of claim to exemption for child of divorced or separated parents and click Start to begin the process

I am always trying to do the right thing where taxes are concerned. If federal law trumps state law, why would a state judge rule on this or have the custodial parent give up the right to claim the child by signing the 8332? If an order that states you should submit the 8332 form every other year (2017 order?) and you don't do that, how does that look to a state judge?  Additionally, if the "qualifying child" isn't really  "qualifying" for my ex husband since he has much less than 50%, why should I be obligated to forgo this much needed exemption.  It is hard to know what the right thing to do is if the state judges and federal judges are not in agreement with one another, the rules, or the federal regulations. Any additional information you can provide is greatly appreciated. 

@Classy01 - Your situation appears to be clear cut and the "right thing" is equally clear. The family court has ordered you to give the other parent form 8332, so you should do. 

The statement " If federal law trumps state law" is misleading.  It doesn't mean the family court order is negated. It only means the IRS is not obligated to enforce it. 

Even after giving the non-custodial parent the "exemption" (and child tax credit), you still get the claim the EIC, HoH, and DCC.  Just be sure you let him know, you're claiming those (legally, not violating the court order) so that he doesn't try to also.

You can file a contempt of court on them though. That is what my husband and I did. The divorce said he could claim one child and she continued to claim her after a second amended decree and SHE STILL continued to claim her. We are waiting to see what they are going to do because we had to mail another return in when they got electronically rejected. We mailed a copy of the decree that was ordered in 2015. Nevertheless it's a contempt charge