Can my ex claim our child? Court for child support, they said that the father was paying for more than half of the living expenses, but she only lives with me all year.

[daisy09-]

Ok, so I'm very confused, the father of my child gets to file taxes for our daughter two out of three years because the court said that he earns more than I do, and because hes supposedly contributing more than me economically, he gets to claim her. The part that I don't understand is how is that possible if she lives me with me every year and always has lived with me, the amount he 'contributes' wouldn't even cover rent, let alone all the other expenses that goes into taking care of our child. So how is it that it was determined that he is contributing more than I am? Can I report this to the IRS?

[xmasbaby0 · Accepted solution]

As far as the IRS is concerned, the custodial parent--the parent who has the child for the most nights of the year--is the parent who can claim the child as a dependent.  That parent can claim the child-related credits such as earned income credit, childcare credit and the child tax credit.  For 2017 and prior--you could also get the personal exemption for your child.  The custodial parent is also the one who can file as Head of Household with that child as a dependent.

IF you signed a Form 8332, then the other parent--the non-custodial parent--could get the personal exemption for the child in 2017 and in prior years, and could claim the child tax credit.  The non-custodial parent can never claim the child in order to get earned income credit or the childcare credit, nor could they file as Head of Household based on claiming that child.   Those credits always go to the custodial parent--even in the "off" year that you cannot fully claim the child if you signed 8332.

For 2018 and beyond, there is no longer a personal exemption.  It has been replaced by the $500 credit for a dependent.

https://ttlc.intuit.com/questions/4499708-what-is-the-500-credit-for-other-dependents-family-tax-cre...

Courts cannot violate the tax laws.  You may need a better attorney who understands the tax laws regarding claiming your child as a dependent.  If the other parent claims the child and files first, you will not be able to e-file.  In that event, print, sign and mail your tax return.  The IRS will sort out who can claim the child based on the tax laws.

[Carl]

Here's the bottom line. The IRS has their own rules for determining who can claim the dependent in the case of divorced or separated parents. Your court order or decree really means nothing to the IRS since only a federal judge can override the IRS rules. Since federal judges don't deal with custody cases, that's never gonna happen. The basic qualifying child dependent rules are at <a rel="nofollow" target="_blank" href="https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit/qualifying-child-rules">...>
xmasbaby0 already covered the IRS Form 8332 which a lower court judge can order the custodial parent to sign and hold them in contempt of court if they don't sign it. But until the custodial parent has signed the 8332, the non-custodial parent just flat out can not claim the child. The IRS will not get involved in such legal proceedings either.

[Texas Roger]

@xmasbaby0: I'm still learning the distinction between the child tax credit and the family credit but wouldn't the non custodial parent who claims the child under age 17 as a dependent still be eligible for the child tax credit which is up to $2000 in 2018? I don't believe this was replaced with the family credit.

[Hal_Al]

Yes, I believe the non custodial parent gets the $2000 child tax credit if the child is under 17 and the $500 credit, if older

[daisy09-]

I spoke to an H&R worker and they told me it's fraud for him to claim her if she doesn't live with him.

[daisy09-]

So don't think it's a personal attack, cause it's not.

[macuser_22]

The non-custodial parent cannot claim without a signed 8332 form OR this was a pre-2009 divorce and the divorce decree specifically stated all three of the following.

If a post 2009 decree and the non-custodial parent was allowed to claim then  the 8332 for is still required and you could be in contempt of court for failing to provide one.    Absent either one and you do not provide a 8332 then only you can claim the child (unless you singed a previous 8332 that applied to  future years).

   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.

[Hal_Al]

No, it is not “fraud”. He is within his rights to claim the child, because there's a court order. . But, he may get his return rejected without a form 8332.  Again, his remedy is to take you back to court and have to judge order you to sign form 8332.

On the other hand, it is also  not “fraud” for you to claim the child, even though there’s a court order for the Ex to claim the child. That’s a whole separate legal issue. The IRS will honor your return if you claim the child; because their rules say you can.

I know it's complicated. Several years ago, the IRS got tired of refereeing and interpreting court orders and had congress change the law. They go by physical custody or form 8332.

You can and should just claim the child. The IRS will sent you your refund*. If you Ex doesn't like it, the IRS will not help him. If he decides to go back to the child support court, there may be different consequences, but the IRS will not take your refund back.
______________________________________________________________________________________________

*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.   
<a rel="nofollow" target="_blank" href="https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030">https://www.thebalance.com/cl...>

[Hal_Al]

No, you “cannot report this to the IRS”. If the court order says he gets to claim the child, as a dependent, then he gets to do so and you could be subject to a contempt of court citation if you interfere. It does not matter that you don’t agree with the court’s logic or even the logic is totally wrong. The order says he gets to claim the child.

That said, the IRS does not enforce court orders. If you claim the child, the IRS will honor your tax return because it meets their rules. You Ex’s only remedy is to take you back to court for sanctions.

There is a way to split the tax benefits.  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 (2017)/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.

[daisy09-]

I never signed off on the 8332 form though..

[macuser_22]

To address part of your original question:

"... the amount he 'contributes' wouldn't even cover rent, let alone all the other expenses that goes into taking care of our child. So how is it that it was determined that he is contributing more than I am? Can I report this to the IRS?...?

The IRS - No.   That is a question that you should have asked when the divorce decree was being negotiated.   If you think the terms are incorrect or circumstances have changed then you should  consult your divorce attorney that wrote the agreement and the court that issued it to possible modify it.   Neither the IRS or anyone else can help with your divorce decree.

[daisy09-]

I was never married to him.

[daisy09-]

And again, I never signed the 8332 form.

[macuser_22]

As stated above the 8332 is immaterial if there is a court order.    He can file without it although he might need to explain to the IRS why he does not have a 8332.

It would seem that your issue is with the court order, so divorce decree of other court order, your attorney is the remedy.