Can the IRS overrule a court order allowing a non-custodial parent who pays child support to claim a child for five consecutive years?

[Jemimaschmidt]

This is very interesting!

YET family court judges routinely issue orders that compel custodial parents to relinquish their right to the child tax deduction and allow the  non custodial to claim it. I have personally experienced this in the Maricopa County Family Court system and my attorney tells me that this is what the judges always  and routinely do and the problem is is that nobody is willing to challenge it because they are concerned that the judge will then retaliate and issue out even more detrimental orders or take custody away. I realize that this topic probably is not of very much interest to the average person on this blog however if you are a parent and you’ve ever been in a position where are you were very concerned about your child and their welfare while in the care of the other parent because they have a history of DV or mental health or substance abuse or addiction,  you might understand that this ratchets up ones anxiety about challenging the order even though the order is not in accord with IRS law what the simple reason that you know that if you challenge an order issued by a judge they may be inclined to retaliate and punish you in a way that actually ends up punishing your child.

I  am very aware that if I refuse to sign the form or allow my ex to take the child tax deduction even though he is the noncustodial parent that he would drag me back in the family court and asked the judge to find  me in contempt of court. Effectively I would be in contempt of court because that was one of her orders even though it conflicts with IRS laws.

My ex for years has been allowed the child tax deduction even though he is the noncustodial parent and I never signed the form allowing him to take the child tax deduction because he did not pay all his child support that year  but his CPA  submitted his tax forms without his signature with no problem.

I personally know people who are  custodial parents and they have been ordered to sign the form and The Family Court judge has ordered them to allow the noncustodial parent you claim the child and because the custodial parent to refused to sign the form because the noncustodial parent was behind in their child support - the custodial parent was punished in the way of losing custodial time  and being threatened with being put in jail for contempt of court.

I am going to consult with a tax attorney and I am going to share what I find out In hopes that Information that I am able to find from an expert may help others on here

[Jemimaschmidt]

Without a signed form 8332, the non-custodial parent just flat out, no way, no how can claim the child as a dependent. Period.

Thank you for your post and while I agree with you that this is what is supposed to happen this is not what happens in reality. For many years I have not signed the 8832 form and the non noncustodial parent has claimed our child with absolutely no problem. Ironically his CPA put on the form that “mother refused to sing  the form”

And moving onto your last paragraph oh if only this were the case but it is not the case the family court orders issued out and Maricopa county most definitely order the custodial parent to allow the noncustodial parent to have the  make the federal tax child deduction 

[DoninGA]

@Jemimaschmidt 

If the noncustodial parent did not have a valid signed Form 8332 and claimed the child as a dependent on their tax return, then they committed tax fraud and perjury by filing a false return.

As stated in the Signature block of a federal tax return -

Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete.

Go to this IRS website to report tax fraud - https://www.irs.gov/individuals/how-do-you-report-suspected-tax-fraud-activity

[Critter]

FIRST the state courts DO have the right to make the custodial parent waive the right to the dependent to the non custodial parent,  this is in accordance with the IRS regulations.  If the custodial parent doesn't like this situation  then they need to talk to their attorney to get this changed  however  this situation is usually the result of a long fight to get to some sort of agreement that both parties can agree on.  Failure to comply with a legal court order can cost you not only money but jail time. 

Next, if the non custodial parent claims the child when they should not have done so they get caught when the custodial parent ALSO claims the same child for the same tax items which will require the IRS to send a letter to both parties instructing the incorrect person to amend their return.   If neither person agrees they are wrong and amends their return then they are both audited and the loser gets to pay back the refund and/or credits plus penalties plus interest.  In the case of the earned income credit they can lose the ability to claim that credit for up to 10 years.  This is not fun for either party so it is best to agree to play by the rules.  

[Vanessa A]

Can you clarify your question please?  If you are asking the same question as the OP, please read the entire thread above.  The question was fully answered. 

[Honestyrocks1024]

If the non custodial parent claims the child and the custodial parent has not signed the 8332 what happens?

When a non custodial parent gets their taxes done and the custodial parent has not signed the form how are the non custodial getting away with it?

When people get their taxes done in indiana,do the tax professionals not seek out this information before filing?

I'm not understanding how this is such a big problem with non custodial filing and not having the paperwork but I guess not being asked for it. 

How can I report this or who do I report to in regards to the tax preparers not requesting this information and also my ex filing without the paperwork?

[Hal_Al]

@Honestyrocks1024 - You don't report it to anybody. It's a common enough situation that the IRS has a procedure.

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.  

[Critter]

@Honestyrocks1024 

A paid tax preparer is not required to verify anything a parent tells them ... so if the non custodial parent says they have a child to claim and that they lived with them then there is nothing the preparer can do  UNLESS they know this to be a blatant lie like if they have personal knowledge of the facts.   As mentioned already, this is really a too common occurrence so the IRS has procedures to deal with it  and the loser in this mess winds up in a never ending nightmare... sucks to be them. 

[Angel Butler]

I know this is a "tax law" forum but i did want to clairify what "acting " judge explained to me...

In Indiana we have (as most states) a child support formula that works out how much child support is paid by the non-custodial parent to the custodial paren

t, also most support calculation work sheets include % 's of support paid by each parent at the bottom. The judge told me that they often give tax credit based on that %.

So, in my case my son's dad makes waaaayyyyy more than me, and hence pays a greater % of " childs income" ( on paper) but we know better!

Example: NCP pays 67% CP pays 33% so to be fair judge orders NCP is entitled to 2 out of 3 yrs, so CP is FORCED by the judge to sign for  them to claim/get child tax credit only if NCP is 95% current in support for the calendar yr. Or yrs...

This is supposed to be in the best interest of the child 's household or ideally the parent which the child is "more"/most,  financially reliant on. But Indiana laws says the only exception is if it causes hardship financially for the child's household to do so. I take it to mean 

( and good luck finding a lawyer who will argue it for u) if NCP pays CP child support pretty regularly and if that child support % is about 50/50 than the parents would take every other year turns w1child or split 2 or more children ,unless the child's household would suffer, and they judge said in so many words that it would have to be drastic hardship or else it wouldn't be worth the cost to the NCP... So, some of u might not like it, and as said above u can ignore the order but is less than $2000 tax credit worth it...?

In my case NCP was more than 5% delinquent and i refused to sign so he filed anyway via mom@hrblock and had to amend it and make payments etc...pay a lawyer to take me to court, then was taken from 2 o3 yrs to 50/50 then he asked for $10 per wk less support instead of any tax claims for last 3 yrs meaning he saves $1560 in support over 3 yrs and doesn't get 2021 tax credit for child... So, u can negotiate this and "agree" w/o even going in front of a judge...

[Tejadac2886]

What if the court order is 50/50 and states that it switches ever year? For instance, I claim odd years he even. However, in 2019 he did have the child for about 3 additional weeks (during a four month duration), does that override the orders for filing? 

[Hal_Al]

Q. Does that override the orders for filing? 

A. No. The order is still binding.  But if he decides not to comply, the IRS will side with him. Your only remedy is to go back to court.  You have an additional problem: because the child physically did not live with you for more than half the year, you are not technically entitled to all benefits.  See full write up below.  But, as long as he doesn't try claim anything, you can  get  away with claiming everything.

____________________________________________________________________________

 For tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. The IRS goes by physical custody, not legal custody. 

In the rare case (could probably only happen in a leap year like 2016), where the time that  each parent has the child is exactly equal, then the parent with the higher income (AGI) is the custodial parent, for the purpose of determining who has first priority on claiming the child as a dependent. But then neither parent can claim a Qualifying Child dependent, for some tax benefits because neither parent had the child the required MORE than half the year. (no earned income credit,  based on that child, and the child would not qualify the parent for Head of Household filing status).

Yes, the IRS expects you to count the numbers of nights the child sleeps at each parent's home.Then you are each the custodial parent of one child. It is allowed  for you to arrange the children's schedules so that the child spends more than half the year with the father one year and more than half with the mother  the next year so that you are each the custodial parent in the year you claim the child, so that you can claim full benefits.

Equal number of nights. If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI) (Pub 17 pg 28).

The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The IRS goes by physical custody, not legal custody. 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. (without conditions - usually the payment of child support). Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf

There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use:
This may be helpful in your negotiations with the ex:

 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 dependency 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: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

You can if you are the custodial parent.  The custodial  parent is (the parent the child lived with for more than 183 days in 2016.

[Scarletbegonia2020]

So if I’m divorced but am the custodial parent even though our divorce order says we split every other year since our child lives me full time (I mean she never sees her father but maybe two weeks a year) he cannot claim our child unless I release her on my taxes? 

[Hal_Al]

Yes and no.  Yes, as far as  the IRS is concerned. But no, from a legal stand point. The divorce order binds you to furnish him the release (form 8332).  If you don't want to do so and claim the kid on your taxes, the IRS will send you the money.  The IRS will not enforce the court order. His only remedy is to sue you, which he will probably win if he's willing to do the hassle. 

[91mommabear]

I have a question, I have been divorced since I was pregnant with my daughter. Her father established paternity in 2010, we’ve been in and out of court for the following years, him trying to revise child support, gain full custody, the whole nine yards. He always fell behind in his support payments and I on numerous occasions cleared his rears to help him out, in our original court documents as long as he was current in support he had the right to claim her on every odd tax year, even if he was not current he still claimed her, he gets her three over night stays a month currently and we split weeks in the summer months. He has never given me the IRS form 8332 in the last nine years. In April of 2019 we signed off on child support because he could not stay current on his payments, in return he helped me with my son (who is not his child, but our daughters brother) on weekends I had to work. I still do half of the driving, we live about an hour and a half apart over state lines. Also in the agreement he sent to the courthouse he said he could claim her for this year and I would claim her for the remainder of the years until she was 18. That being said, he has not helped with child care for my son since early November, he has been unemployed since September, he called me in December and asked if I would claim our daughter and give him the money because he got in trouble a few years back for being employed and drawing unemployment from his previous job. So in simpler terms, her tax credit is supposed to pay for his mistakes, when in reality it could benefit her and myself since I am her sole provider, she lives with me, I pay child care and everything she needs with no support from him. With the agreement we signed, which by the way was not notarized in front of me before filing at the courthouse, he did not hold up on his end of the agreement and we no longer have an active case, does he have the right to claim our child as a dependent? 

Thanks for reading

[Hal_Al]

@91mommabear -

Q. Does he have the right to claim our child as a dependent?

A.  No

Everything you posted is irrelevant except one thing*: the child lives with you more than she lives with the other parent.  YOU get to decide who claims the child. If you want to let him claim the child this year, give him form 8332. Without it, he can't claim the child.  "He has never given me the IRS form 8332".  You are the custodial parent, you don't need that form.  He, as the non custodial parent, needs it from you.

This may be helpful in your negotiations with the ex:

 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 dependency 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: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

You can if you are the custodial parent.  The custodial  parent is (the parent the child lived with for more than 183 days in 2019.

*There may be some question as to the validity in " the agreement he sent to the courthouse"; but the IRS doesn't care about it. They only care about physical custody.  The ex cannot present the agreement to the IRS,. The IRS will send YOU all the money. The ex has to try to get the court to give him some of it.