@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 ?
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.
