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New Member

Claiming my son

My custody order says that my ex and I are suppose to alternate tax years since we are "50/50". He owed over $8k in back child support and asked if I waive it I can claim the kids to get my money back. This year is "his year" to claim and I filed and claimed because he still owes me. Now he's changing his mind. He wanted me to file and half the tax credits with him and if I didnt do that he would claim them. And get the full tax return. I dont think I'm obligated to give him anything because he literally kept $10k of back child support. Is there any negative consequences to me claiming my kids.

8 Replies
Level 15

Claiming my son

Ok ... if you are the custodial parent then you  have the right to claim the children  UNLESS you waive that right to the non custodial parent ( the IRS doesn't care about 50/50 anything)  HOWEVER your court order decrees that you are to alternate the dependency deduction so if you do not sign a form 8332 and waive the dependency to the other parent you are in contempt of court and he can take you to court to get you to do what you were ordered.


That said  the non custodial parent doesn't get EVERYTHING ... there is only one way to legally split the children ... here is the IRS rules:



There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody). That can usually only occur if both parents lived with the child at the same time.   And yes they are that picky.

The custodial parent may claim everything child related  UNLESS they waive the dependency exemption to the non custodial parent via a form 8332.... in that case the child may be used on 2 separate returns but only in the following way :


Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household 
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
- The Child Tax Credit

See Special rule to divorced or separated parents (or parents who live apart) on page 32:

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.


Level 15

Claiming my son

And....if he is delinquent by over $10K in child support will he want to go to court with you?

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**
New Member

Claiming my son

@xmasbaby0 @He was delinquent in 2017,after our custody case. In lieu of the hassle of waiving the back pay I gave him the child support issued debit card because I was so stressed from the custody case and he said hed let me claim the kids to recoup that money.  So for two years whatever went into to child support account went right back to him. So I'm out that 10k and now he said he'll take me to court for claiming the kids on his year

New Member

Claiming my son

@Critter  how does the IRS confirm how many nights which parent had the child?

Level 15

Claiming my son

You keep a calendar and have witnesses and written proof ... see the IRS audit info listed in the link provided below ... 


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.   
For more info, see

Level 1

Claiming my son

So if my ex filed before me and claimed my son I need to do paper return. 


My circumstances:

We share custody - son lives 3 or 4 nights per week with me and same with her.  

I pay her 300 dollars per month child support (does that negate her claiming  50% of support?)

I have the higher AGI

There is nothing in the custody agreement that says who claims him.


Can i file amended return for two prior years where she did the same?

Employee Tax Expert

Claiming my son

You can file the amended returns and must include the "proof" in the paperwork filed with the amendment showing the reason for the amendment.  

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Level 2

Claiming my son

How did you waive the 10k he owes you?  Unless it was agreed in court, he still owes you 10k.

Having gone through a nasty custody battle.. Please, don't agree to anything with someone like this without a court agreement.

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