My ex has claimed my son

charmagnegarza — Mon, 03 Jun 2019 18:54:44 GMT

My sons father was not current on child support for 2016. Court orders say he must be current to claim him. Is there a form I need to fill out for the IRS tie breaker for my dependent ?

Child support payments are not relevant when claiming a d...

DoninGA — Mon, 03 Jun 2019 18:54:46 GMT

Child support payments are not relevant when claiming a dependent on federal tax return. Are you the custodial parent whom the child lived with for more than 6 months of the year?

The IRS will not enforce court orders. They go by their r...

Hal_Al — Mon, 03 Jun 2019 18:54:47 GMT

The IRS will not enforce court orders. They go by their rules and their rules say 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 IRS goes by physical custody, not legal custody. 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.

If someone else claimed your child, 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. Your ex's only remedy is to to take you back to court and since he's not in compliance himself (" Court orders say he must be current ") that's unlikely.

https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030

There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use:
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 exemption 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.

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

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My ex has claimed my son

Child support payments are not relevant when claiming a d...

The IRS will not enforce court orders. They go by their r...