Can the IRS overrule a court order allowing a non-custodial parent who pays child support to claim a child for five consecutive years?

[91mommabear]

Thank you so much for the insight! It has been years of me being bullied into a corner and believing I was doing was was right. I appreciate it! 

[avincent61]

@Opus 17 I have to firmly disagree with this statement:

"But, in this situation suppose the custodial parent does not allow the non-custodial parent to claim the exemption -- that means the custodial parent gets $2000 more on their tax refund that ultimately comes out of the pocket of the non-custodial parent who can't claim the dependent.  The custodial parent has basically "stolen" an extra $2000 in child support from the non-custodial parent."

As a custodial parent, I do not "get $2000 more" on my tax refund.  I claim the child tax "credit", which lowers my AGI.  Additionally, I am owed $10K in backed child support, and the IRS only awards a percentage of his tax return to me for that backed support.  His visitation (including holidays and special days) accounts for 15% of time spent.  At 10 years old, our child doesn't have their own room, nor a bed at his house.  His annual support is $2400, barely covering summer camp and after care for school.

The brunt of the cost, responsibility, and raising of our child is on me.  Clothes, food, health insurance, doctors visits and treatment, therapy, homework, social management, wiping tears, this list goes on.  His minimal involvement and laughable financial contribution should not grant him the right to claim our child simply because a judge says or because he played a small part in creating our child. I put in 99% of the work as many other custodial parents do, therefore the custodial parent gets a break on the taxes they owe for the year and may get a refund.  I set my exemptions to come out as even as possible, not to gain a lump sum of money.

[Critter]

@avincent61 

As a custodial parent, I do not "get $2000 more" on my tax refund.  I claim the child tax "credit", which lowers my AGI.    This statement is incorrect .... the CTC does NOT reduce your AGI it reduces your tax liability $ for $ until your tax liability is reduced to zero ... then any unused portion can be come refundable up to $1400 per child. 

IRS only awards a percentage of his tax return to me for that backed support.  The IRS just does what it is told to do ... he probably makes sure he has no or little refund to attach  or  the refund must be divided among several claims against it. 

Everything else you mention is a personal matter to take up with the courts ... the IRS has no skin in that game and cannot will not get involved. 

[latinamom68]

So what I have to do because my daughter father n I we have join custody but reclaimed every yr n is been for 10 yrs I didn't give him no permission for that n he don't give me ntn only child support by court. Wat I have to do please help

[Hal_Al]

@latinamom68  -

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)

[BrandonEasley1985]

My son's mother and I have been separated (we were never married)  for many years. We went our separate ways when he was 4, he is now 12.  I have never missed a child support payment or asked to claim him on my taxes at the end of the year. However, this year I requested to do so and she has declined to let me do so. 

Is there a way I can file a motion to the court to have her sign the 8332 form, so I can claim him every other year? If so, would I need to file a lawsuit or is this a family court type of case? 

Any guidance would be nice. Thanks in advance. 

[CatinaT1]

The IRS looks at who the custodial parent is and who is not.  The custodial parent is who the child lives with for more time during the tax year.

When you allow a non-custodial parent to claim a child, you are only releasing the ability to claim the child for Child Tax Credit under the special rule for divorced and separated parents.

The custodial parent retains tax benefits related to Head of Household filing status, Earned Income Credit, and the Child and Dependent Care Credit.  To be eligible for these credits, the child must have lived with you for more than half the year, so the non-custodial parent is not eligible for those credits.

This article will give you more information: Divorced and Separated Parents

[Hal_Al]

@BrandonEasley1985  - You have identified what you need to: get a judge to order her to give you the form 8332.  It happens frequently. For how you go about it, you've asked a legal question and there are no lawyers here. 

But, pick up on the info in CatinaT1's reply.  You have a negotiating point with the mother.  She may not realize that if she releases the dependency and child tax credit to you, she still gets to retain the Earned Income Credit and (if applicable)  Head of Household filing status and the day care credit.  

[Jjg29150]

So I finalized my divorce in December of 2019. Per the court agreement we are to file married jointly and claim both of our children together but I am to receive all income tax between the two of us. (ex husband and I). We both filed and completed it and signed to finish filing the taxes and now my ex husband is trying to amend the taxes to try and claim one of our children. The current income tax we did married jointly was already received by the IRS and is currently in process. Is there anything I can do to fight against this? We finalized our divorce December 4th and he is arguing because we were not married 12/31/19 he can do it. 

[LeonardS]

This appears to be a legal issue involving the terms and enforcement of your divorce.  This issue is outside the scope of the tax community.

[Jemimaschmidt]

If he has actually filed and it is contradictory to the court order the file a contempt motion. 

If he files and the IRS receives two returns and catches the duplicative claim on the dependent child. 

You both will he asked to file hard copy returns. 

you likely will do better to let him know that you are filing a contempt motion. The courts don’t take kindly to people like him and will likely make him pay your court fees and may even sanction him for your time and energy.

[Jjg29150]

thank you for your help!

[Critter]

@Jjg29150 

The courts cannot order you to do something illegal ... if the divorce was final 12/4/19 then you CANNOT file a joint return for 2019 PERIOD.  If you did file a joint return illegally then you must BOTH amend the return to file separate returns either as SINGLE or  HEAD OF HOUSEHOLD  if either/both of you qualify.  This is WAY beyond the ability of the TT program ... you both MUST seek a local tax professional to get this MESS fixed.  

[Critter]

@Jemimaschmidt 

Sorry dude you are wrong.  

[2020Roman]

In 2011 a judge ordered to have our child claim every other year one year me the next his dad until the child is 18.  I am the custodial parent, the child always been with me and we have done the taxes that way since 2011, I never signed any form, I read in previous posts here about a form people sign or are forced to sign I never signed any authorization until this day giving his father any authorization.

The child turned 18 Aug 2019 I claimed him in 2018 ... does the father has the right to claim him for 2019, when the child is already 18, never lived with him and does not get financial support from him?

My CPA says I can claim him but will be audited because he did claimed first, I pay his college and now I am facing loosing the money for his tuition because his father claimed him first when he knows he is already 18, goes to college and he does not help in any way. Would I be in contempt if his father takes me to court when the child is already 18? His father lives in a different state. ANY HELP IS APPRECIATED Thank You