I have court papers saying that I have to rotate my children with my ex husband for taxes. We didn't sign the 8332 form. They live with me. Do I get the tax credit ?

[mrsjennifer24]

Trying to see if he can file without signing the 8332 form 

[macuser_22 · Accepted solution]

It is the custodial parent that must sign a 8332 form and give it to the non-custodial parent so that the non-custodial parent can claim the exemption.  Custody for tax purposes means physics custody where the child lived more than 183 nights during the year and is not the same legal custody that a court might grant. 

Failing to provide the 8332 form if directed to do so by a court order could result in contempt of court.

If there is a pre-2009 divorce decree that specifies that:

 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 will not 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.

Then the other parent might be able to attach certain pages from the divorce decree in place of the 8332 form, but after 2009 the IRS only accepts a signed 8332 form.

[Hal_Al]

 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: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"