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Hal_Al · ‎February 6, 2020

Restating what you said for clarity:

Daughter's father and I we have joint custody. He has claimed her every year for 10 yrs. I didn't give him permission for that. He paid me court ordered child support. I now want to claim the child on my taxes. How do I do that?

There are two possible ways:

1. You just do it and let the IRS sort it out. 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. The custodial parent is the parent that the child lived with for more than 182 nights in 2019.

2. You discuss it with him and come to some agreement. There is a way to split the tax benefits. This may be helpful in your negotiations with the ex:

There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

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 has released the dependency to him.

So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Before deciding, you need to understand the rules:

For tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. . The IRS goes by physical custody, not legal custody. 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 custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. 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. (without conditions - usually the payment of child support). Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf

It is allowed for you to arrange the child's schedules so that the child spends more than half the year with the father one year and more than half with the mother the next year so that you are each the custodial parent in the year you claim the child, so that you can claim full benefits.

Equal number of nights. If the child lived with each parent for an equal number of nights during the year (highly unlikely), the custodial parent is the parent with the higher adjusted gross income (AGI)