Child tax credit divorced parents

[Smspencer1216]

Situation

Pre 2008 Divorce decre -

1. mother is residential parent

2. father gets child as dependent in even number years, mother gets odd number years and if requested, Mother will sign any forms necessary to release Child  including form 8332

(mother did not sign form)

Mother signed form 8332 revoking all future years from father however, the court order has not been modified to indicate this. 

Can the father still claim the child using the divorce decre? 

[xmasbaby0]

The IRS cares about who the child lives with--not court orders or divorce decrees.

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 + education credits if the child is a full-time college student.  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.

[macuser_22]

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@Smspencer1216 wrote:

Pre 2008 Divorce decre -

Can the father still claim the child using the divorce decre? 

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That depends on the language of the decree and it it meets the following IRS requirements - most decrees do not meet the requirments:

https://www.irs.gov/pub/irs-pdf/p501.pdf

Page 14

Post-1984 and pre-2009 divorce decree
or separation agreement. If the divorce decree
or separation agreement went into effect
after 1984 and before 2009, the noncustodial
parent may be able to attach certain pages from
the decree or agreement instead of Form 8332.
The decree or agreement must state all three of
the following.
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 won't 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.

[Smspencer1216]

Per the divorce decre, the mother is the residential/custodial parent but the child has lived with the father for all of this year and he has filed a motion in court to change him to the residential/custodial parent. The motions are still pending in court. 

[Smspencer1216]

The decre states " defendant/father shall be entitled to claim minor child as a dependent upon his income tax return every even numbered year with the plaintive /mother claiming the child as a dependent every odd numbered year. If requested mother shall execute and forward to father any such forms as may be required for him to claim such exemption by any taxing authority including irs form 8332".

[macuser_22]

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@Smspencer1216 wrote:

Per the divorce decre, the mother is the residential/custodial parent but the child has lived with the father for all of this year and he has filed a motion in court to change him to the residential/custodial parent. The motions are still pending in court. 

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The IRS does not care about any divorce decree.     That (and the 8332) only come into play IF the custodial parent FOR TAX releases the dependent to the non-custodial parent.

TAX CUSTODY is NOT the same as legal custody.    Tax custody is which parent the child physically lived with more then half the tax year (more then 183 nights).    If you are that parent then no 8332 or decree attachments are necessary at all since YOU are the custodial parent for tax.      It would be you that would have to give a 8332 to the  other if you were allowing the mother to claim the child tax credit.

[See that same IRS publication page 13 (Children of divorced of separated parents) that explains what tax custody is.   No divorce decree can change Federal Tax law reguardless of what the decree says.]

Legal custody might give you other rights such as choosing school choices for the child, but it has NOTHING to do with tax and claiming the child if the child physically lived with you the required time.

When you enter the child into TurboTax you say the child lived with you the entire year and you do NOT have a custody agreement (so that YOU could release the dependent to the mother).

[macuser_22]

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@Smspencer1216 wrote:

 ...forward to father any such forms as may be required for him to claim such exemption by any taxing authority including irs form 8332".

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Exactly, except if the child physically lived with you then NO such forms are required by any taxing authority.

However, in odd years, if the child lives with you, it will be YOU that must issue a 8332 to the mother.   The wording in the decree (at least that part of it) seems to assume that the child will always live with the mother and doe not seem to account for the possibility of the child living with you instead.  (That is what happens when lawyers that do not understand tax law write decrees.)    Whether the mother can force YOU to supply a 8332 in odd years (if the child still lived with you) is something for you  to talk to your attorney about since the decree is silent about that possibility.

The decree seems to be based on assumptions that are no longer true (unless covered elsewhere in the decree).