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

[Jemimaschmidt]

You could file a motion in family court asking for clarification of the order or for relief. It sounds like you would be entitled to the claim under  federal IRS law. 

[2020Roman]

First let me say Thank you for the response. I do understand IRS will decide I am allowed and not him, but I am concerned about what actions he could take against me, he previously filed a motion for contempt against me for visitations  just last year when already our child turned 18 he wanted his child to be forced to visit him for 2 months in the Summer thanks to the same Court order from 2011 that was never modified because I moved to another state and if I file a motion has to be in the state that was all opened , I cant afford to travel and pay lawyers.

• I spent 1700 dollars in a lawyer in his state and it did not even have a hearing! Everything for nothing Im dealing with a vindictive person.

This year if  I claim our child I will receive 3,800 dollars , counting  the credit from college, thats the semester tuition for our child ! Without me claiming our child my taxes are 3800 less Just insane!! My question is if he can file against me in court again claiming contempt even if our child is almost 19

[Hal_Al]

@2020Roman 

This is a tax forum. You're asking legal questions, not tax questions. The child turning 18 (depending on his state law) enters the issue of emancipation.  The special rule for divorced  parents (discussed above) may no longer apply.

[challenger031789]

So my question is, if I remarried someone else right after getting divorced and I am the custodial parent, but I haven’t worked in that year, than I don’t receive the tax benefit? And the judge can make me sign the 8332 so that the NCP can claim the children? The order states the father gets to claim them in any year it is not a take benefit to me. 

[Hal_Al]

@challenger031789 

Once you remarry, you can and should file a joint return with your new spouse. That allows you get a tax benefit, for claiming a child, because you have joint income.  So, as long as your new spouse has enough income, you will get a tax benefit, even though you, individually,  have no income. 

[Jezz]

Ok, I've tried to read all this it's a lot of back and forth, been trying to find something to help clarify the aspect of the wording that is in your child support order. Just saw a mention of how don't play word games with a judge, so can I ask. When the wording in the official child support order gives the non-custodial parent permission to claim one child as an exemption for income tax purposes, is this to imply that the earned income tax credit, is also something that non-custodial parent is permitted and allowed to claim....... even if that non-custodial parent doesn't qualify for the credit?

[Hal_Al]

Q. When the wording in the official child support order gives the non-custodial parent permission to claim one child as an exemption* for income tax purposes, is this to imply that the earned income tax credit (EITC or EIC), is also something that non-custodial parent is permitted and allowed to claim.

A.  No.  But it does mean he can claim the Child Tax Credit (CTC).  The CTC  essentially "goes with" the exemption. Even if the court order specifically says the non custodial parent gets to claim the EITC; that provision would be invalid, as federal law does not allow that.

*Prior to 2018, "claiming the exemption", meant getting an approximate $4000 deduction (it went up a little each year). The exemption deduction was eliminated starting in 2018. It was replaced by an increase in the CTC, for children under 17, and a $500 Other dependent credit for others.  So, if you court order says you can claim the exemption, it means you can claim the dependent and the CTC or $500 other dependent credit.

[Rachel14]

The judge ordered my ex to claim dependency exemption and stated that he is not required to fill out any additional forms which is against irs law. I am the custodial parent that has my kids 83% of the time. He lives over an hour away from us. Can a judge allow him to break federal law and not need form 8332? We went to court on November 20, 2020 and I have the transcripts from this motion. The motion was brought for me being in contempt of court for tax exemptions. Our divorce order does not say I’m to fill out form 8332. And the non custodial parent has to be current on child support too.

How does this work?

[Hal_Al]

Q. How does this work?

A. You need to sign form 8332 and give it to your ex even if the court order doesn't specifically say so. If the court order says he gets to claim the dependent, then it's inferred that you will not obstruct it by failing to cooperate.

Q. Can a judge allow him to break federal law and not need form 8332? 

A. No.  It sounds like they tried to save you and him some paperwork  hassle.  The IRS may process his return without. But if they ask for it, you need to provide it.

That's my opinion. I'm not a lawyer.

[Opus 17]

Unfortunately, too many judges and attorneys don’t understand how the tax law affects divorces.

The only way your ex can claim your child as a dependent without form 8332 is if your ex claims at the child lives with him or her more than half the nights of the year. If your ex does this, then your ex will also be qualified to claim head of household status, the earned income credit, and the credit for child care expenses (assuming your ex meets all the other qualifications for those credits).  Those credits always stay with a parent who has custody more than half the nights of the year and can’t be waived, shared, or delegated.

Conversely, you will be denied the ability to file as head of household, or claim EIC, or claim the credit for child care expenses, even if you would otherwise qualify to claim those credits.

if you are not expecting to file as head of household or claim EIC or the credit for child care expenses, then you don’t lose anything I suppose. If it were me, I would send your ex a signed form 8332 and a copy of IRS publication 502 and inform him that you intend to follow all IRS regulations regardless of the judges comments.

[macuser_22]

Of course, if the judge ordered you NOT to claim the child as a dependent and NOT supply a 8332 form, then you should obey the order.   It the IRS audits his return and denies his claim for lack of the 8332 form, then that is between him, the IRS and the court since you are simply following the directions of the court.     In past years the IRS was rather lax in requiring the 8332 forms. but recently, because of tax fraud, they have been much more aggressive in enforcing it.

[MSCO9241]

The judge ordered my ex to claim dependency exemption and stated that he is not required to fill out any additional forms which is against irs law.

"ORDERED"  divorce decrees can grant the noncustodial parent the right to claim a noncustodial child.  it can not order that parent to file a tax return claiming them.

the noncustodial parent does not fill out the 8332 so there would be no form for him to fill out.  the 8332 is done by the custodial parent. to be valid the custodial parent must sign and date it. if the court granted the noncustodial parent the right to claim a noncustodial child and the custodial parent refuses to provide the form , if requested, the noncustodial parent can go back to court.   you would have to talk to a divorce attorney in your state to find out what the penalties could be for violating the court order.

Assuming you don't provide the form initially, nothing prevents you, from the IRS standpoint, of claiming the child on your return.  the noncustodial parent goes back to court and it orders you to supply the form under penalty if you fail to do so.   so you provide the form.  the noncustodial parent files the return or amended return with the form.  you then have the option of filing an amended return taking off the child or waiting for the IRS to adjust your return.  either way you'll end up owing taxes penalties and interest.   

best advice talk to your attorney if you had one for advice or get one.  if your ex takes you back to court among the things the court could order is for you to pay your ex's legal and all court costs.      

[Mizz02]

I have a court order that was modified in 2018 involving 2 minors. NCP is allowed to claim 1 child every year until that child is 18 which is 2022 and claim 2nd child once every 5 years (which is on his 2020 taxes) Original order was done in 2014 but NCP was MIA until 2016 which is when he started claiming. I NEVER FILED OUT ANY IRS FORMS that I'm assuming was suppose to follow with the order. So how is said NCP filing taxes without that Form? He has no visits with them. Doesn't pay anything other then CS monthly. Our modification even shows he has zero visits with both children as to why it went up. 

[Opus 17]

If you do not give the noncustodial parent assigned form 8332, the only other way the noncustodial parent can claim the children as dependence is if they lie and say the children live in their home more than half the night of the year. Depending on other facts and circumstances, this may end up giving the noncustodial parent additional tax benefits that they are not allowed to claim, such as the ability to file as head of household, claim earned income credit, or the dependent care expense credit. And, if you leave the child completely off your tax return, you may be denied some of the same benefits.

If you choose, you may list the children on your tax return by indicating that they live with you more than half the year, and then say yes to the custody question and yes to the question, “will you be giving the other parent a signed form 8332?“. The children will be added to your tax return with the status of “not a dependent this year“ but may qualify you to file as head of household or to claim the earned income credit depending on your other circumstances. You must then give the noncustodial parent a signed form 8332. You can print this form from the section on “other tax situations“ or you can download it from the IRS website.  After that, your responsibility is finished. If the noncustodial parent correctly uses the form 8332 when filing their tax return, they will claim the correct tax benefits and there will be no e-filing hassles or conflicts. If the noncustodial parent does not use form 8332 correctly, then their tax return may be rejected, or they may get an audit letter from the IRS.

[Gleverjoy]

What about if there is no custodial parent nor non-custodial parent? We have 50/50 in the eyes of the court and we claim our child taking turns but mother had to move out of state before the middle of the year starts, child is with dad atm. Can mother still take her turn to claim her child for the year?