Child tax credit

[45451]

My ex signed our divorce decree stating that I could claim one of our children. She claims the other. We have 2 children. Last year she claimed both children and I did not realize it until I went to file and receive my refund. Both children reside with her full time. I see the one son I claim specifically for about 6 weeks in the summer and 5 days to 1 week a year during Christmas or Thanksgiving. I live in a different state and travel a lot so I am not with them hardly at all. She is considered primary custody. With our divorce decree and it being legally binding, can she do that or is there a way I can go back and reverse what she has done with our divorce documentation stating this agreement? Ultimately, can she get “dinged” or in trouble for doing this either with the IRS or in court where are divorce decrement resides?  Again, full transparency, I am not the custodial parent and they do not live with me. Only visits during the year on the agreed times and dates. 

[xmasbaby0]

The IRS cares about physical custody.   The custodial parent is the parent with whom the child spent the most nights---at least 183 nights--during the tax year.

There *can*  be a signed form---called an 8332 form -- that allows the non-custodial parent to get the child tax credit----but not any of the other child-related credits like earned income credit or childcare credit, and the non-custodial parent cannot file as Head of Household using that child as the qualifying dependent.

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.

[rjs]

Your divorce decree is legally binding on you and your ex-wife. It is not legally binding on the IRS. If your divorce decree took effect after 2008, then in order to claim one of the children on your tax return you have to have a Form 8332 signed by the custodial parent, your ex-wife. The divorce decree should have required her to provide this to you. If you do not have a Form 8332 signed by your ex-wife, then you cannot claim the child if you are not the custodial parent.

[45451]

Thank you for the information. So is there anything I can do legally? I know you may not be lawyers or have much to help in the family law. But, is this something I can bring her back to court to reverse if the IRS deems her rightly entitled to claim? We never signed any forms and I don’t know if that was my mistake or hers or both. I would have thought my lawyer would have caught that and advised me to get the form. 

[rjs]

I would think that you could get the court to enforce the divorce decree. It might not even be necessary to go to court. If it's clear that your ex violated the terms of the divorce, maybe your lawyer could talk to her lawyer and get her to cooperate. But this is a matter of state law, not federal tax law. And as you said, we are not lawyers here. Your first step should be to talk to your lawyer.

If your ex amends her tax return to remove the child that she should not have claimed, and she gives you a signed Form 8332, then you will be able to file your tax return, or file an amended return, and claim the child. (You will have to file by mail; you will not be able to e-file.)

You don't need just one form. You need a signed Form 8332 for every year that you are the noncustodial parent and you claim the child. The custodial parent can fill out one form for multiple years if she is willing to, but you still have to send a copy of that form with your tax return each year.

Problems with divorce decrees not conforming to tax law are common. Many divorce lawyers, and family court judges, don't know as much about tax law as they think they do. You might want to try to get your lawyer to work with a tax professional or a tax lawyer.

[Truththadon1]

Hello I have been in prison for the first 6 months of the year and worked for the last 6 months of the year IRS saying I can not get credit for claiming a child is this true even though I worked for six months and took care of my kids and they lived with me

[rjs]

@Truththadon1 

Duplicate post. See the responses to your separate post of the same question, and reply there with the additional information requested. Do not continue the discussion of your question here.