Will my ex get a benefit from claiming our son and if not, can I claim?

[Anonymous]

My divorce decree states that the noncustodial parent can claim our child as a dependent on taxes as long as he is eligible to be claimed, and that should the non-custodial parent not receive any economic benefit from the claim, the custodial parent shall have the option of claiming. I am the custodial parent. I argued against this at mediation but my attorney said to just leave this in the separation agreement because my ex (the non-custodial parent) made too much money to ever be able to claim our child, and that I'll get to do it (my ex made over $1 million last year).  I want to claim our child because a) I'm the custodial parent and b) I meet the income requirements to get the $3600 child tax credit. I have consulted with two CPAs, one told me not to claim our child since my decree says my ex can, and the other CPA said I should claim our child because the wording is vague of whether my ex will get a benefit and that based on AGI there's no way she could see him getting the benefit, which according to the decree, than allows me the option of claiming in the calendar year.  My ex never does his taxes until Sept/Oct because of K-1s. Can I just go ahead and claim our child? My ex now wants to "coordinate" on filing (even though we're divorced)- which tells me he knows he isn't going to get a benefit to claiming probably. I suppose he could take me to family court in Virginia and the judge could stop me from claiming but the CPA said there's no way he will get any benefit and a judge wouldn't like stop me from claiming because I will get a benefit from the dependency claim but that was one CPA's opinion. Any experience with this?

[Bsch4477]

You have to separate what are your court ordered legal responsibilities from your tax rights according to the IRS. The IRS doesn’t concern itself with your dissolution agreement and so you can, as the custodial parent, claim the child with all of the tax benefits. 

Whether the father can get any tax benefit from claiming the dependency doesn’t matter. If you are breaching your legal agreement he, of course, can take legal action against you. 

You should know that even if you allow him to claim the dependency (which you should do by giving him a signed form 8332), you will still receive earned income credit, child care credit and can file as Head of Household if otherwise qualified. The IRS will give you those benefits even though your agreement reads that you don’t get any tax benefits. 

[Anonymous]

I don't qualify to get any child care credit or earned income credit this year, which is why the child tax credit is so important to me. I guess what I want to know is, with an AGI over $1 million, will my ex get any economic benefit from claiming a dependent child? Because our agreement states that if he doesn't, then I have the option to claim.

[Bsch4477]

I can’t think of any.