Do you have the Form 8332 releasing the child from the custodial parent to the non custodial parent for this years? You need that for IRS.
Only the custodial parent can claim the personal exemption of the child on their tax return. Unless the custodial parent relinquishes the child's personal exemption to the non-custodial parent by giving that parent a signed Form 8332.
The Internal Revenue Code of the United States is not affected by a family court order.
If the custodial parent is in violation of the court order, then that matter has to be taken up with the court. The court has the power to compel the custodial parent to abide by the court order if they are in violation.
That Form 8332 "should" be included as part of the divorce paperwork....why attorneys haven't figured this out yet baffles me...I guess they figure they'll make more money when you have to go back to court for this kind of thing rather than including the IRS form originally.
Thank you to all who answered my question. I understand the necessity of form 8332, the waiving of rights, etc. The mother was taken to court by the child's father 3/17 and ordered to waive dependency rights (8332) for 2017 tax year. She contacted the IRS, explained situation and was told by an agent she had every right to claim the child (being the custodial parent) so she filed taxes and claimed him. The father found out and back to court they go. She could have been held in contempt of the order but wasn't. She had to file an amended tax form, waive her rights to her child and now is required to repay the IRS "x" amount of dollars. I understand that but why a judge rules five consecutive years is baffling to me. The mother was also told the IRS doesn't get involved with "domestic disputes." If she didn't sign a form waiving her rights to the child for the next five years maybe a tax lawyer is the next step.
The court can't order the IRS to follow the court directive, but the court can order the parent to follow the court directive. If the parent doesn't sign the release form, the IRS will be quite happy to continue to award her the dependent exemption. But the court is within its rights to hold her in contempt, or make other adverse rulings against her.
Let's start with an example child support order of $1000 per month plus the non-custodial parent gets to claim the dependent every other year. That saves the non-custodial parent about $2000 every other year. Personally, I would rather reduce the child support to $900 per month and let the custodial parent always claim the dependent, as it turns out the same in the end.
But, in this situation suppose the custodial parent does not allow the non-custodial parent to claim the exemption -- that means the custodial parent gets $2000 more on their tax refund that ultimately comes out of the pocket of the non-custodial parent who can't claim the dependent. The custodial parent has basically "stolen" an extra $2000 in child support from the non-custodial parent.
Family court judges tend not to like this kind of behavior.
The parent here was ordered in 2017 to waive the dependent for 2017. What is not clear to me is how this was done -- if the custodial parent had given the non-custodial parent a signed form 8332 AT THE HEARING in March 2017, it can't legally be revoked until the start of the next tax year. So apparently, she did not give him the form at the time and the court didn't order it, so when tax season rolled around, she refused to give the father the form, and claimed the child.
Again, family court judges tend not to like it when parents ignore their orders.
The IRS employee was correct that from the IRS point of view, the custodial parent never has to sign the waiver if they don't want to. But the employee, and the mother, both failed to take into account that, while the judge can't authorize the father to claim the dependent without the form, the judge can order the mother to sign the form or be held in contempt of court. It sounds like the mother needs a new family law attorney who will tell her that not following the judge's order is a bad idea.
So now it sounds like the judge is extra-annoyed, and is penalizing the mother with an extra 5 years releasing the dependent exemption to the father. This is perfectly within the judge's right. He or she can issue broad orders and penalties to force the parties to comply with court orders. (I'm sure that if the shoe were on the other foot, and the father was missing payments or refused to return the child after visitation, the mother would appreciate a judge who expects their rulings to be followed.)
To say it again: the judge can't authorize the father to claim the child without a release, since that violates federal law. But the judge can order the mother to sign the release. The judge could also reduce child support, change visitation, fine the mother, or put her in jail, for violating the court's orders.
There is nothing that a tax lawyer can do for the mother. The dependent rules are crystal clear. If she signs the form, the father claims the exemption, and if she doesn't sign the form, she can claim the exemption. The IRS will be happy to apply the federal tax law either way. But if she doesn't sign the form, she can be punished by the judge, so if she wants to modify the order or change the support arrangements, she may need a new family law attorney.
Ty Opus! Neither was represented in the initial court hearing! I read the court papers. There was no mention of form 8332 thus no waiving of dependent, only that the father could claim child for 2017 tax year. Having some knowledge of the tax code, I explained the situation and the possible consequences if she failed to adhere to the court orders. I suggested both parties meet and discuss the situation with the hopes of an amicable agreement. Nope! Neither would budge. So, the inevitable happened at the second hearing. Other then having to pay court costs and filing an amended tax form she was lucky in my opinion. I now understand the reasoning behind the five consecutive years. She may not agree but there is no reason to pursue this any further. Thank you for your time and your explanation. I will see that she reads this!
Absolutely. The IRS is controlled by federal law, and federal law trumps state law and state court orders. Too many divorce attorneys and judges don't understand this.
A noncustodial parent can only claim a child dependent if they have a signed release form from the custodial parent.
The only exception is certain divorce orders signed in 2008 or earlier that contain highly specific required language.
Even with a signed release form or a qualifying divorce order, the noncustodial parent is only ever allowed to claim the dependent exemption and the child tax credit. The ability to claim EIC, file as head of household, and claim the dependent care credit, always stay with the custodial parent, and can't be waived, transferred, or released.
I've read that a judge can hold a party in contempt for not following his/her ruling on this - but you are saying that the federal law overrides. Can a judge hold me in contempt for not allowing the other parent to claim the child on alternating years even though he is not the custodial parent and never has been? We're not even in the same state anymore (this was ordered in NV family court and we all now live in NY).
Federal law controls the tax return. A state judge can't authorize parent #2 to claim a child without form 8332 if parent #2 is not the custodial parent, the IRS will reject the claim. And a state court judge can't issue an order allowing the non-custodial parent to file as head of household or claim EIC, because that would violate federal law.
But the judge can very definitely order parent #1 to sign the form 8332 for parent #2, or hold parent #1 in contempt, or fine parent #1, or change the child custody or child support orders in ways that are adverse to parent #1. Judges don't like to have their orders ignored. Whether you can or should ignore your court order is a matter for you and your attorney.
Important to have the facts first, I'd say. The order does not specify that form 8332, or any type of release for that matter, must be provided by me. It was written in very vague terms by opposing counsel and did not even mention the name of the tax credit. There has got to be some kind of standard for enforceable legal documentation. It seems to me to be too vague by a mile to be enforceable. It also seems absurd that a federal law can be overridden so cavalierly by small-time judges in local jurisdictions.
Still, the IRS requires a signed 8332 or equivalent. Period. But the local judge can say that if the custodial parent is failing to do what they have to do to produce that outcome then they are in contempt.
That's a legal question for your attorney, or for your ex to pursue (I'm sure the case can be transferred to your current state).
Suppose a court order says "you must buy milk for your child and bring it to the other parent's home." Would it be invalid because it doesn't specify which type of milk, or whether you needed to use a car or a bicycle? Or would the court expect common words to have the meaning they commonly have.
Likewise, if the order says "parent 2 may claim the child as a dependent in odd numbered years", is it unenforceable because it does not specify the exact mechanism by which this is done?
We are not attorneys. We can only explain the IRS position. Everything else is between you, your ex, and the courts.
That's not a valid comparison. Legal documents do require some level of specificity. According to the recommended answer, tax law must include "specific language" that form 8332 be filled out by the CP and provided to the NCP. I'm not sure to whom "we" is referring. If you're not an attorney and/or can't really contribute any meaningful personal knowledge regarding a perfectly valid tax question, it's puzzling why you would comment at all. Surely there are people out there who actually are attorneys or who do have personal knowledge of these situations. "They" are the intended audience.
@Opus 17 Is one of the most knowledgeable users on this message board concerning tax issues. This message board is not for the giving of legal opinions which would be totally useless anyway. Recommendations from anonymous posters claiming to be attorneys, really.
If you are convinced you are right, why bother asking here?
The tax advice is absolutely correct. The IRS will not award a dependent claim of the non-custodial parent without a signed form 8332 from the custodial parent. Everything else is a matter between you, your ex, and the judge.
Somewhere on this board, a year or 18 months ago, is a post from an ex-spouse who refused the sign the required waiver. The judge was so pissed that he required the ex to sign a waiver form right there in the courtroom, awarding the dependent to the other parent for ALL future years, and if the parent refused to sign, they would be hauled off to jail right that instant and stay there until they signed.
Judges have a lot of power, and ignoring the plain language of an order because you think you can play word games is a dangerous strategy.
In my city, we currently have a criminal defendant, accused of trying to buy shotgun while on parole, her parole specifically ordered that she was not to possess any dangerous weapons. She is trying to argue that an unloaded shotgun is not a dangerous weapon, and the charges should therefore be dismissed. Care to take bets on how that turns out?
In any case, this is between you, your ex, and the courts. Best of luck to you.
Yes you can be held in contempt of court and spend 30 day min.. in jail plus pay the other parent what you received for the child you claimed... Just ask my ex lol...
A follow up question. In 2012, I signed an amended separation agreement stating that once my son turns 18, that we would rotate my daughter as a tax deduction every other year. My daughter turned 18 in May 2019. Although I was eligible to claim my son last year, I didn't because he benefited more than I did. So technically, 2019 is the first year we would 'rotate' my daughter. My daughter lives with me, I pay all of her medical, and I will be paying for her college. The second year we would 'rotate' my daughter would be 2021 and then I would be done with the agreement. Now my ex is refusing to provide my daughter with her funds from her 529 plan. That being said, will the courts overturn the amended separation agreement in favor of me getting the tax deduction, especially since I am providing for her and my ex-husband is not?
Where would a custodial parent turn or what can they do if they were ordered in a county court to allow noncustodial parent to claim EIC along with form 8332. Clearly if form 8332 is completed it is perfectly legal for noncustodial parent to claim child for child tax credit but EIC is not allowed for a judge to compel but custodial parent can face jail if they violate an order by judge which is actually breaking federal law. Custodial parent attorney does not want to go against judge.
Is there any caselaw or Court of Appeals cases that I can be referred to for a reference? The judge of my case has ordered that the child’s father have the tax exemption and child tax credit even though he has her for less than half the year and does not have custody . I am in Arizona and I need something to give to my family law attorney who appears uninformed about this particular topic and tells me the judge can order whatever she wants to order and I have to comply or run the risk of losing custody and being in contempt of court . I have been the primary custodial parent for the last six years he makes twice what I make and judge ordered that the non custody parent should claim the child despite me having her more than 50 percent of the time and I pay for health care and all medical and school related expenses. I want to be able to refer my attorney to cases that have been brought before the State Supreme Court I need to find cases where A superior court judge has gone against the federal law and ordered the child tax credit to the noncustodial parent and it has been appealed .
Did you read this entire thread as carefully as you should have? If you sign Form 8332, (which a judge can order you to do) that means the non-custodial parent can get the child tax credit. As of your 2018 tax return, there is no personal exemption for claiming the child, so you have not lost that--everyone lost that as of the 2018 tax return.
Even if you sign 8332, you still retain the right to the child care credit (if you pay a sitter to provide childcare while you are at work) and you still can get the earned income credit (if you otherwise qualify according to your income).
Like it or not, a judge can order that you sign the 8332, giving the child tax credit to the other parent. You still get the other child-related credits.
If your attorney does not understand these basics of tax law you need a better attorney.
I am the custodial parent. My Divorce decree says that the petitioner (which is me) may claim the minor child unless they do not benefit. I did not work in 2018 as I went back to school for my masters. Thus, I can not benefit. My ex is stating that means they can now claim the child and trying to force me to sign form 8232. My understanding is that I may claim but I am not required to claim if I do not benefit. The respondent is not even referenced. Am I right in thinking that signing the form is optional.and not required since the divorce decree does.not specifically state that the respondent can claim the child if I do not benefit?
@Douglas4488 - Yes and no. Yes, as far as the IRS is concerned, the non-custodial parent can only claim the child if you sign form 8332. You are not required to do so, under IRS rules.
The real question is what is the intent of the divorce decree. I'm not a lawyer, and have not seen the actual decree. But, I infer from what you describe that the intent is for the non-custodial parent to claim the child, when you get no benefit. But, the IRS will not enforce that. If you don't give the non-custodial parent form 8332, his/her only remedy is to take you back to court.
I have not read through this entire thread, as it is rather long. But I can tell you this.
When it comes to the dependents of separated or divorced parents the IRS has their own rules that must be followed. The only entity that can over ride those rules would be a federal judge. Since federal judges do not handle separations, divorces or child custody issues, I'm highly confident in saying that will never happen. A lower court judge can not over ride federal tax laws. Period. (Even though some state level and lower judges incorrectly believe they can.) But there is one thing a lower court judge can do.
Basically, federal tax law on this is covered in IRS Publication 504 at https://www.irs.gov/pub/irs-pdf/p504.pdf What will matter to you starts on page 11 of that document.
Basically, the IRS says, "The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent."
Now what I lower court judge can do, is order the custodial parent (as defined by the IRS, not as defined by a lower court judge) to sign an IRS form 8332 giving the non-custodial parent the right to claim the child as a dependent on the non-custodial parent's tax return. If the custodial parent refuses to sign the 8332, then the court can hold the custodial parent in contempt of court. Even if the custodial parent still refuses to sign the 8332, the non-custodial parent just flat out can not claim the child. The IRS will not under any circumstances get involved in any legal proceedings concerning this either. The bottom line is, if the non-custodial parent does not have an IRS Form 8332 signed by the custodial parent, then the non-custodial parent can not claim the child. Period.
Now understand that even with a signed form 8332, the custodial parent can still claim the EIC for the child if they qualify and the non-custodial parent can not.