Divorced parents

[Smspencer1216]

Mother is designated as the residential parent in divorce decre.

Per the decre, Father may claim child in even numbered years and Mother will claim in odd numbered years

This is a pre 2008 divorce decre

Child moved in with father in late 2019 and has been living with him for all of 2020 (spent more nights at fathers house than with mother)

Father has motions pending in court to change the residential parent designation to him due to the child moving in with him. 

Mother previously revoked all future years from Father with form 8332 but the court never modified the original order to allow this

Can Father claim child on his taxes?

[Bsch4477]

The IRS doesn’t recognize stipulations in a divorce decree but has its own rules to determine eligibility for claiming a dependent.  The custodial parent is the one with whom the child spent the most nights and that parent claims the dependency and other tax credits. No “residential decree” is required by the IRS. 

[Critter-3]

Her filing an 8332 to negate the divorce decree stipulations is NOT an IRS issue ... this is a legal issue so have this handled by your attorney.   For the tax returns, you can file the return as it should be and attach the divorce decree to support your right to claim the dependent.  

[Hal_Al]

Yes, the Father claim child on his 2020 taxes. Father does not need form 8332 from the mother for 2020.  The child is his qualifying child for 2020 because the child lived with him for more than half the year.  Unlike previous even numbered years, the father may also claim the child for Head of Household and Earned Income Credit.

________________________________________________________________________________

 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 182 nights in 2020.

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).

[Smspencer1216]

Would the irs accept her revocation over the original decre? 

[Hal_Al]

"Mother previously revoked all future years from Father with form 8332 but the court never modified the original order to allow this."

Q. Would the IRS accept her revocation over the original decree? 

It's not really relevant, since the child now lives with the father. But, since this is a a pre 2009 decree, the non custodial father doesn't usually need form 8332. He attaches copies of the relevant pages to his tax return. If the court didn't revoke it, it's still valid  (caveat: I'm not a lawyer)

Another issue: How old is the child? Is he/she emancipated.  An emancipated child is in neither parent's "custody" and the special rule for divorced/separated parents not longer applies (the tax benefits cannot be "split"). But who the emancipated child lives with is still important for tax purposes.

A child of a taxpayer (emancipated or not) can still be a “Qualifying Child” (QC) dependent, regardless of his/her income, if:

1. He is under age 19, or under 24 if a full time student for at least 5 months of the year, or is totally & permanently disabled
2. He did not provide more than 1/2 his own support. Scholarships are considered third party support and not as support provided by the student.
3. He lived with the parent (including temporary absences such as away at school) for more than half the year

[Critter-3]

They may but at least you have another point to fight her illegal use of the form in court.  By filing that form she is in contempt of court ... have them force her to undo her mistake or pay you the difference in a settlement ... again talk to your attorney. 

[Smspencer1216]

The child is 16. Still a highschool student, has a part time job but DOES NOT pay for her support, living expenses, etc.

[Hal_Al]

2020 is pretty straight forward: you claim the child for full tax benefits.  If the mother files a competing return, the IRS will handle the dispute*.

2021 (odd number year) will be more interesting, but apparently you may have that resolved by a new court order. 

*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. You will have to prove the child lived with you.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial  parent almost always wins. The IRS goes by physical custody, not legal custody.