Child credit with supervised visits?

[Haeller]

According to my original divorce decree, this is my husband's year to claim our son his taxes. However, he has had supervised visits since August of 2019 (so literally all of 2020) and has even missed most of those. He is up to date on child support but is way behind on medical bills (he is supposed to be paying half and we have a substantial amount of medical bills) and has not seen our son since September. His family has begun harassing me wanting my son's SSN and a tax form (8332 I believe) filled out so my ex can claim my son. It seems odd to me that someone with court ordered supervised visits get to claim a child on their taxes but they're threatening to hold me in contempt of court if I don't fill out the paperwork and give him my son's SSN... Help!

[xmasbaby0]

We cannot give you legal advice or know what court order you have to deal with.  But we do know the IRS rules.

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[Critter-3]

If the court order says it is his year and you are the custodial parent then he is within his right to ask for the form 8332 from you ... if you do not provide the form and allow the child to be claimed by him as a dependent then although the IRS will not care  he can take you to court where you could be  charged with contempt of a court order.  

The IRS goes by physical custody, not legal custody. You are the custodial parent if the child(ren) spend more than half the nights, in a year, with you.

 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: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[Hal_Al]

We cannot give you legal advice or know what court order you have to deal with (no lawyers here).  But, in general, if there is a court order, that the ex gets to claim the child, it's inferred that you have to provide  form 8332 and the child's SS#.

That said, and as the other reply already said, the IRS does not enforce court orders.  It goes by it's own rules.  If you claim the kid, the IRS will give you all the benefits.  The ex's only remedy is to take you back to court.  Being found in contempt is a possible outcome.

For more detail, see a similar question, asked by an ex,  at  https://ttlc.intuit.com/questions/3479726-my-ex-claimed-our-child-but-our-court-order-says-i-m-suppo...

[Hal_Al]

You say "According to my original divorce decree, this is my husband's year to claim our son his taxes".

That infers that you claimed the child, on your 2019 return,  and got the $1100 (500 + 600) child stimulus money (assuming the child is under 17).

You might be interested to know that due to loop hole, in the covid law,  your ex  will be allowed to claim the same $1100 on his 2020 tax return, if he claims the child as a dependent. 

[Haeller]

And what exactly does that mean?

[Critter-3]

If you are asking about this loop hole ... 

Since the advance stimulus credit was based on either the 2018 or 2019 returns so if you claimed the child on the 2019 return and got the stimulus for the kid you get to keep it.

Then if the child is claimed by the ex on the 2020 return then he gets the credit for the child again and it is legal.   

Due to this loop hole in the law they did not change on purpose the stimulus can be claimed on the same child twice  if both parents otherwise qualify based off their incomes.  

[xmasbaby0]

The stimulus money for a qualifying child is linked to the child tax credit.  So if your ex gets the child tax credit for 2020 he gets the stimulus money for the child too--- even if you got it already last year.  They do not make you pay it back.   There is an oddity in the way they wrote the stimulus bill that lets divorced parents get that money for the same child if they are claiming the child for the following year.