@Stacylkh wrote:
I haven’t received the letter yet but I’m assuming this is the issue because they are holding my refund and the IRS person said that a letter was sent out on the 27th I have no other tax issues, my taxes are very straightforward. I guess what I want to know is if he will win the right to claim her because the 2006 divorce decree said he could, even though the new court order says Im supposed to get her 2018 and 2019. Also he hasn’t seen her since April 2018 and I’ve always been the custodial parent. Will I just have to prove she lived with me etc? I’m just worried they will only look at the old divorce decree.
Some of my colleagues missed the fact that the divorce was settled in 2006; for divorced finalized before 12/31/2008, a non-custodial parent can claim a child as a dependent by attaching certain pages from the divorce agreement, form 8332 is not necessarily needed.
What is not clear to me is how this grandfathered rule is affected by the 2018 modification. It's not a situation I have seen before, and I would have to look up the regulation or the IRS audit manual for the issue and that's what you would pay a professional for. I assume that your ex claimed the child for 2018 and 2019 by attaching copies of the original 2006 divorce decree and did not admit or mention the modification.
There are of course two basic possibilities; either the IRS ignores the 2018 modification, or they respect the 2018 modification. If the IRS respects the 2018 modification, then to claim your child as a dependent for 2018 and 2019, you would need to be prepared to show the IRS both proof of residency and a copy of the 2018 modification that invalidates the 2006 order. If the IRS does not respect the 2018 modification, then you probably will not be allowed (by the IRS) to claim that child, and you will have to go back to family court to recover damages from your ex. Unfortunately, I don't know the audit procedure for this specific situation. I suggest that, if the IRS asks for more information (or if they deny the dependent claim, you have a right to appeal) that in your communications or appeal you provide both proof of residency and a copy of the divorce modification.
