My fiances doesn't want her ex husband to claim th...
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My fiances doesn't want her ex husband to claim their child he only pays child support and the child barely sees him and doesn't live with him ever can he go to court and be able to claim the child wi

Without her consent and can i claim him on my taxes
3 Replies
Level 15

My fiances doesn't want her ex husband to claim their child he only pays child support and the child barely sees him and doesn't live with him ever can he go to court and be able to claim the child wi

Only the parent that physically lived with the child for more than half the year can claim unless that parent voluntary* releases the dependent to the non-custodial parent with a signed 8332 form (or it is spelled out in a pre-2009 divorce decree that the non-custodial parent can claim the child).

 

Child support is not a factor.  

 

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Custodial Parent
These are a paraphrase of the IRS rules for divorced or separated parents that live apart.

[Note: Unless the parents have been separated at all times during the last 6 months of the year, these rules do not apply.]

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 501 for full information.

https://www.irs.gov/publications/p501#en_US_2018_publink1000220904

This assumes that the child is under age 18 (in most states).  Once the child becomes an adult (Emancipated child), custody becomes mute and these rules no longer apply.(See examples 5 & 6 in Pub 501 for more information)

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 legal 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 so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent  in Pub 501

https://www.irs.gov/publications/p501#en_US_2018_publink1000220906

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

The non custodial parent can only claim: (Child would be listed as dependent)
- The child as a dependent
- The Child Tax Credit or credit for other dependents

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.

Note. If you are the non-custodial parent filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.

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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 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.

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.

Post-2008 divorce decree or separation agreement.   The noncustodial parent cannot attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The custodial parent must sign either Form 8332 or a similar statement whose only purpose is to release the custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.

Form 8332 rules for non-custodial parent:
Attach this form or similar statement to your tax return for each year you claim the exemption for your child. You can claim the exemption only if the other dependency tests in your tax return instruction booklet are met.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal for an IRS e-file Return). See Form 8453 and its instructions for more details.

This must be done within 3 days of your e-filed return being accepted by the IRS.
http://www.irs.gov/pub/irs-pdf/f8453.pdf

 

 

**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
Level 15

My fiances doesn't want her ex husband to claim their child he only pays child support and the child barely sees him and doesn't live with him ever can he go to court and be able to claim the child wi

If you are not married to the child’s parent, then you cannot claim the child as a dependent unless the child lived in your home for all 365 days of 2020, and the mother does not file a tax return, and you provided more than half the child’s total support.

 

The parent who the child lived with more than half the year is the only parent with the automatic right to claim the child as a dependent. If the other parent claimed the child on their tax return, the custodial parent can still claim their child but they may be required to file by mail instead of e-filing. When the IRS receives the duplicate dependent claims, they will begin an investigation and the parent who incorrectly claimed the child will have to pay back any tax benefits with interest and possibly penalties.

*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
Level 15

My fiances doesn't want her ex husband to claim their child he only pays child support and the child barely sees him and doesn't live with him ever can he go to court and be able to claim the child wi

Yes, the non-custodial parent can get a court order to allow him to claim the child.  Although the court order is binding on the custodial parent and her fiancé, it is not binding on the IRS. If you claim the child, his only remedy against the ex is to take you and her back to court for sanctions.  For a detailed explanation, see https://ttlc.intuit.com/questions/3479726-my-ex-claimed-our-child-but-our-court-order-says-i-m-suppo...

 

Be aware, even if you qualify to claim the child (and that's iffy), you only get the $500 non-refundable other dependent credit. The father can get the $2000 child tax credit and $1100 stimulus.  Make a deal.  Neither of you are allowed the Earned Income Credit; you because you are not related to the child, him because the child does not live with him.

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