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rosepetal1986
Returning Member

Non custodial parent claimed child without form 8332

My ex is getting the Advanced CTC, my daughters stimulus, and has gotten her CTC every year for 3 years but has never filed form 8332. She lives with me, he has never taken her overnight & provides well under a 1/4 of her support of her care. Can I switch the CTC in the portal to me as I'm the custodial parent? Also, can I amend prior returns (within the 3 year window) to claim her as he never had my written permission via form 8332? I did check we had an agreement on turbotax but didn't fill out any form. I thought I had to because of the divorce decree but going back to get it fixed as he is in constant violation and it only stands that he claims her under the assumption he takes her according to the parenting plan, and as he has never taken her overnight, he definitely doesn't. So as far as I understand, IRS rules say he shouldn't have received anything for her without my written permission (form 8332) but he has for the last 3 years including the stimulus & now the advanced CTC & I just want to know if I can fix that. I get EIC for her as she lives with me but she hasn't counted as a dependent because of him claiming her. Sorry if this wrong forum. 

2 Replies
R-SchuleCPA
Employee Tax Expert

Non custodial parent claimed child without form 8332

My first piece of advice, assuming your husband is in child support arrears is to file complaint with the Court for revocation of dependent credits and payment of arrears.  Usually Courts have a self-filing section with easy to fill forms and instructions. An alternate suggestion will be to get a statement from Child Support which shows your ex- husband to be arrears, and file it with form 8332, along with an appropriate explanation. Part III of 88332 will ask for revocation. 

 

Form 8332

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fkbright
Employee Tax Expert

Non custodial parent claimed child without form 8332

Good afternoon!

 

There are several pieces to this so I will try to answer all of them.

 

Regarding the Child Tax Credit Update Portal allows you to check your eligibility, check on payments, and unenroll from receiving the advanced payments.  It does not (yet) have the ability for you to enroll.

 

The advanced payments are sent based on the prior year tax returns, so if your ex claimed your daughter he would automatically be enrolled to receive the payments.

 

He will likely be required to repay the amount received if you file and claim your daughter on your 2021 tax return.  If you are eligible, you would receive the full amount as a credit on your tax return.

 

Regarding amending your prior year returns, you are able to do this as long as you meet all the legal requirements to have claimed your daughter as a dependent.  I will post a link to a helpful article as well as some highlights below.

 

Please note that if your ex-spouse has already claimed the children on his prior year returns, the IRS will apply the "tie breaker" rules to determine which of you can claim your daughter as a dependent.

 

I also strongly suggest you consult with your attorney.  While the IRS makes its determination based on their rules, you need to make sure that filing the amended returns does not violate provisions in your divorce decree or custody agreement that could subject you to a potential contempt of court situation.

 

https://turbotax.intuit.com/tax-tips/family/rules-for-claiming-a-dependent-on-your-tax-return/L8LODb...

 

The IRS rules for qualifying dependents cover just about every conceivable situation, from housekeepers to emancipated offspring.  Fortunately, most of us live simpler lives. The basic rules will cover almost everyone. Here’s how it all breaks down.

 

There are two types of dependents, each subject to different rules:

  • A qualifying child
  • A qualifying relative

For both types of dependents, you’ll need to answer the following questions to determine if you can claim them.

  • Are they a citizen or resident? The person must be a U.S. citizen, a U.S. national, U.S. resident, or a resident of Canada or Mexico. Many people wonder if they can claim a foreign-exchange student who temporarily lives with them. The answer is maybe, but only if they meet this requirement.
  • Are you the only person claiming them as a dependent? You can’t claim someone who takes a personal exemption for himself or claims another dependent on his own tax form.
  • Are they filing a joint return? You cannot claim someone who is married and files a joint tax return. Say you support your married teenaged son: If he files a joint return with his spouse, you can’t claim him as a dependent.

Qualifying child

In addition to the qualifications above, to claim an exemption for your child, you must be able to answer "yes" to all of the following questions.

  • Are they related to you? The child can be your son, daughter, stepchild, eligible foster child, brother, sister, half brother, half sister, stepbrother, stepsister, adopted child or an offspring of any of them.
  • Do they meet the age requirement? Your child must be under age 19 or, if a full-time student, under age 24. There is no age limit if your child is permanently and totally disabled.
  • Do they live with you? Your child must live with you for more than half the year, but several exceptions apply.
  • Do you financially support them? Your child may have a job, but that job cannot provide more than half of her support.
  • Are you the only person claiming them? This requirement commonly applies to children of divorced parents. Here you must use the “tie breaker rules,” which are found in IRS Publication 501. These rules establish income, parentage and residency requirements for claiming a child.

Best wishes,

fkbright

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