Form 8332

[Amandaleighk09]

can anyone help with form 8332? My husband and his ex wife divorced in 2010, and she’s always claimed their 11 year old child on taxes, she’s never let my husband. I thought it was in their divorce decree that it alternated years. I know forms were never filled out. Should forms have been? What would be done, I wanted to see if it was possible to claim the child with our taxes this year. 

[xmasbaby0]

First of all---who does the child live with or spend the most nights with?  As far as the IRS is concerned, the parent who has the child for the most nights in the year is the custodial parent and therefore the parent who can claim the child.  

But sometimes a court order says that the custodial parent must sign a form 8332.  If that form is signed, then the custodial parent still gets to claim earned income credit and the childcare credit but the non-custodial parent can get the child tax credit.

In the case of a single parent who is the custodial parent, that parent is also the one who can file as Head of Household.

So---who does the child live with, and is there a Form 8332 signed or ordered to be signed by either one of the parents?

[Amandaleighk09]

The custody arrangement is 50/50. thats not through the courts tho, they did that verbally a few years ago. I've never heard of anything about a form.. just that the divorce papers said alternate years.. but she never allowed him to, she always was the one to claim. but she doesn't work and has three other kids.. I'm not even sure if its beneficial to her to claim all four of her kids?

[xmasbaby0]

You did not answer the question of who the child lives with most.  There is no such thing as 50-50.  There are 365 days in the year.  Whoever had the child for at least 183 nights is the custodial parent.  The IRS would say you have to actually count up the nights.  However, if the ex does not have income from working, she cannot get any child-related credits.  The child-related credits like earned income credit, childcare credit and child tax credit are only available to parents who WORK and earn income.  Is the ex married to someone else with whom she is filing a joint return?

[Carl]

Understand that when it comes to taxes the IRS is not bound by and does not care about any divorce decree, separation agreement or custody order. The IRS has their own rules based on federal law that *must* be adhered to. What any court says holds no weight and means nothing to/with the IRS. The only legal authority that can change that, is a federal judge. What a lower court may "order" doesn't matter. Since federal judges do not deal with divorce, separation or custody, I'm 100% confident in stating it's never going to happen.

Basically, the IRS states that the custodial parent is the one who claims the child, and they clearlyl define the custodial parent and non-custodial parent.

 - Custodial parent - The one with whom the child lived for more than 182 nights (not days) of the tax year. In the case of parental separation during the tax y ear, the custodial parent is the one with whom the child lived the most nights of the year. Temporary absences such as hospital stays, school, summer camp, etc. count for the custodial parent provided the child returns to the home of the custodial parent at the end of the temporary absence.

 - Non-custodial parent - The parent with whom the child did not live with for more than 182 nights of the tax year. In the case of parental separation during the tax year, it's the parent with whom the child lived with the least number of nights (not days) during the tax year.

In order for the non-custodial parent to claim the child, the custodial parent must provide the non-custodial parent a signed IRS Form 8332 releasing their right to claim the child to the non-custodial parent.

[Amandaleighk09]

I mean technically we have the child more, she typically doesn’t have him on the weekends. We can physically count it out I guess, but it’s week on week off. It depends on the year I guess and how it works. Yes, she is remarried. I imagine they file together. 

[TomD8]

<<I thought it was in their divorce decree that it alternated years.>>

If that's true, it's up to the divorce court to enforce the decree.  The IRS can't and doesn't enforce local court orders.  But that doesn't mean the parents can ignore the court order.  To comply with such a court order, the custodial (by IRS definition) parent would have to voluntarily relinquish their right to claim the child in each year that was not "their" year to claim.

A custodial parent relinquishes their right to claim the child by providing the non-custodial parent with a signed Form 8332, which the non-custodial parent must attach to their tax return.  Here's a link to Form 8332: https://www.irs.gov/pub/irs-pdf/f8332.pdf

[dmb4444444]

Question in regards.

Based on what I read here.  If the children involved in a divorce no matter what was decided at the local/county level live with you more then 50% of the nights in a year you are able to claim them as dependent who qualifies for the tax benefit/reductions.  Unless there is a 8332 giving up your right to claim them for benefit/reduction purpose on your taxes regardless of how many nights that child spent at your residence.   Is this form needed if you claim the child every year and that child lives with you for more then 50% of the nights?  And this form is only needed if the parent claiming the child resides where the child being claimed did NOT spend more then 50% of the nights?

[TomD8]

The parent with whom the child spent more than half the year is the custodial parent in the eyes of the IRS, and has the right to claim that child as a dependent on their tax return.  Form 8332 is used if the custodial parent wishes to relinquish their right to claim to the non-custodial parent.

The word "custodial" to the IRS refers to physical custody, not to legal custody as determined by a local court.