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

[Mike9241]

"custodial parent" should be considered an IRS term. it's the parent the child lives with for more than 183 nights.

you say the child is with dad. thus, I assume that's more than 183 nights making him the custodial parent in the eyes of the IRS. the IRS doesn't care what the courts say or what you agree to.  only the custodial parent can claim the child unless they furnish the non-custodial parent with a signed form 8332 which the non-custodial parent must include with their tax return. this means that the non-custodial parent will have to mail in the return.

Post-1984 and pre-2009 decree or
agreement. If the divorce decree or
separation agreement went into effect after
1984 and before 2009, the noncustodial
parent can attach certain pages from the
decree or agreement but these pages must contain ll the info required by the form. 

[Hal_Al]

Q. Can mother still take her turn to claim her child for the year? 

A. Yes, but Dad must provide her form 8332.  She can still e-file.  The form 8332 is mailed in separately with cover (transmittal) form 8453.

"The eyes of the court" don't matter.   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 2020), 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).

[Gleverjoy]

Another thing is, the child doesn’t physically live with his dad but he is with his grandparents house. Can that make another argument or does that qualify any parent to claim the child? 

[Hal_Al]

Q.  Another thing is, the child doesn’t physically live with his dad but he is with his grandparents house. Can that make another argument or does that qualify any parent to claim the child? 

A. The child doesn't have to live in the father's home, he only has to live with the father.  So if the father and child live in the grandparent's home, the child still lives with the father.   The father is still the custodial parent.

But, yes it does make another possible scenario. A child can be the “qualifying child” dependent of any close relative in the household.  So, you may have three options:

• The father can claim the child, as custodial parent
• The father can allow the non custodial mother to claim the child using form 8332 (as he has apparently already agreed to do)
• He can allow the grandparents to claim the child. No form needed.  There is an additional requirement: the grandparents must have a higher income (AGI) than the father.

On the other hand, if the child lives with the grandparents and did not live with either parent for more than half the year, then the grandparents are the only taxpayer that can claim the child (there's some unlikely scenarios where a parent could still claim the child, but more info would be needed).

[Opus 17]

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@Gleverjoy wrote:

Another thing is, the child doesn’t physically live with his dad but he is with his grandparents house. Can that make another argument or does that qualify any parent to claim the child? 

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All the rules are here, although it may take several reads to understand it all.

https://www.irs.gov/forms-pubs/about-publication-501

If the child lives more than half the nights of the year in the same home as one of the parents, then the "special rules for children of divorced or separated parents" apply.  It can be someone else's home, as long as the parent and child live together.  The child can only automatically be claimed as a dependent by the parent where the child lives more than half the nights of the the year.  This is the "custodial parent" according to the IRS.  (The IRS does not follow and is not required to follow state court orders.)  The non-custodial parent can only claim the child as a dependent if the custodial parent gives them a release form.  

If the parent where the child physically lives changes from year to year, then the parent with the automatic right to claim the child will also change from year to year.

If the child does not live in the home of either parent for 183 or more nights -- such as the child lives with grandparents most nights and one of the parents does not live with them -- then the special rules for children of divorced or separated parents don't apply.  The grandparents can claim the child under the ordinary rules, and the release form 8332 is not used -- the grandparents can't use that form to transfer the dependent to either parent if the parents and child don't live together. 

[Bdog2020]

The idea that the form 8332 should be included with the divorce paperwork and not filled out each year that it is required is absolutely absurd. If anyone has an ex like mine and signs that paper for anything more than 1 year at a time then they know that their ex will take advantage and use it to file every single year and it would be a race to get your paperwork and file every single year. Then the custodial parent would be revoking it on their years and they shouldn’t have to do that. Especially if the other parent doesn’t do what they are supposed to the rest of the year. Everything doesn’t always work out like it looks on paper and sometimes people just agree to things and never have the intention to living up to it. Also if they do not support the child they definitely do not deserve to claim them. Just another reason not to include the paper. 

[ReneeM7122]

Unfortunately, the problem is that a divorce decree in and of itself is not considered a written declaration per IRS regulations.  Even if there is a divorce decree in place that states the parent by whom the child can be claimed, it's not enough.  Internal Revenue Code 152(e)(2) requires Form 8332 or other sufficient written declaration to be attached to the noncustodial parent's tax return because the IRS is not involved in personal court cases unless it is a criminal issue.  The form is an instrument.  If a custodial parent violates the agreement, the noncustodial parent must go to the state court for a remedy, not the IRS.  Since many people make the mistake of assuming that the IRS will rely on a divorce decree, this is the reason why it's suggested that the form be attached.

@Bdog2020

[macuser_22]

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@Bdog2020 wrote:

The idea that the form 8332 should be included with the divorce paperwork and not filled out each year that it is required is absolutely absurd. If anyone has an ex like mine and signs that paper for anything more than 1 year at a time then they know that their ex will take advantage and use it to file every single year and it would be a race to get your paperwork and file every single year. Then the custodial parent would be revoking it on their years and they shouldn’t have to do that. Especially if the other parent doesn’t do what they are supposed to the rest of the year. Everything doesn’t always work out like it looks on paper and sometimes people just agree to things and never have the intention to living up to it. Also if they do not support the child they definitely do not deserve to claim them. Just another reason not to include the paper. 

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A 8332 form can be signed in three ways - 1) A new form each year that is only for that year.

 2) An "open-ended" agreement for all (or selected) future years,

and 3)  Revoking   #2.

The problem with #2 and #3,  the revoke, is that it dies not take effect until the year *after* it is submitted.

[Opus 17]

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@Bdog2020 wrote:

The idea that the form 8332 should be included with the divorce paperwork and not filled out each year that it is required is absolutely absurd. If anyone has an ex like mine and signs that paper for anything more than 1 year at a time then they know that their ex will take advantage and use it to file every single year and it would be a race to get your paperwork and file every single year. Then the custodial parent would be revoking it on their years and they shouldn’t have to do that. Especially if the other parent doesn’t do what they are supposed to the rest of the year. Everything doesn’t always work out like it looks on paper and sometimes people just agree to things and never have the intention to living up to it. Also if they do not support the child they definitely do not deserve to claim them. Just another reason not to include the paper. 

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Review form 8332.  An advance form 8332 can specify specific years (2020, 2022, 2024, etc) and could only be used to claim the child in those years.  An advance form 8332 can't be used to claim the child in the "wrong" year unless the parent filling out the form does it wrong. 

"Also if they do not support the child they definitely do not deserve to claim them. Just another reason not to include the paper."

The judge may disagree.  At least one taxpayer on this forum told a story in which they refused to sign the form because of some disagreement, the other parent took them to court, and the judge was so frustrated that he ordered the parent to sign a new form giving the dependent to the other parent for every future year, and threatened the parent with jail time for contempt if she did not sign on the spot.  If there is a court order that says the custodial parent must allow the non-custodial parent to claim the child, the non-custodial parent should not violate that order without competent legal advice. 

[Nkilgore035]

Question related to this long thread on form 8332.  
      Does the non custodial parent still need to pay at least half of the costs to support the child in which they want to claim?    If they do not meet the tests of this, the. The child does not qualify as  a dependent?   And if there are certain qualifying rules or tests that the IRS has in place to say yes or no this child does or does not meet the criteria for you to claim as a dependent; then in my mind a state or lower level judge should not be able to order a person to sign the form.

   I am a custodial parent .  In our divorce (2019) the agreement Is that she can claim one of our two children every year as long as she is current on child support.   She only pays $127 per week for two kids and I carry them on my insurance.   The child support doesn’t come close to coving the cost of their insurance every month, let alone any and all other costs.   She doesn’t come anywhere near paying for half of the support for the children , should a judge be able to make me  sign 8332?   

[macuser_22]

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@Nkilgore035 wrote:

Question related to this long thread on form 8332.  
      Does the non custodial parent still need to pay at least half of the costs to support the child in which they want to claim?  

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No.  Congress changed the support test law a long time (15 years or so) ago.    The current support test is that the "child" does not provide more than half of their "own" support to be a Qualifying Child dependent.   It makes no matter whatsoever who pays the child's support as long as it is not the child themselves.      The support could be 100% paid by either parent or no parent at all.

[DaveF1006]

Macuser_22 is correct in his/her advice. In addition to what was mentioned, according to this Turbo Tax link, you have the choice whether or not to sign the 8332.  It cannot be forced upon you unless it is in the divorce settlement. 

If it has been signed and agreed to by both parties, the IRS cannot reverse the order and you may need to go back to court to reverse the order.

[Rachel14]

I never agreed to sign form 8332. Also my ex husband can’t claim a child without form 8332. Requirements are that he had a majority of the overnights according to IRS. The judge found me in contempt of court and said I was to allow my ex husband to violate federal law as she said he doesn’t need form 8332 to claim a child. I have filled out the identify theft form now as IRS asked me too. My ex husband doesn’t pay daycare costs only I do. The judge said I’m not allowed to write that off. I think the judge personally can be sued for her actions.

[macuser_22]

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@Rachel14 wrote:

I never agreed to sign form 8332. Also my ex husband can’t claim a child without form 8332. Requirements are that he had a majority of the overnights according to IRS. The judge found me in contempt of court and said I was to allow my ex husband to violate federal law as she said he doesn’t need form 8332 to claim a child. I have filled out the identify theft form now as IRS asked me too. My ex husband doesn’t pay daycare costs only I do. The judge said I’m not allowed to write that off. I think the judge personally can be sued for her actions.

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The IRS and tax law only cares which parent the child physically lived with more than half the year - that is the custodial patent.

The non-custodial parent CAN attach a court order to their tax return in place of the 8332 form if the custodial parent refused to sign it in violation of the court order.   The IRS does not enforce court orders, the court does.

What a local Court CANNOT do (legally) is override Federal tax law that says ONLY the custodial parent can claim the EIC and Child Care Credit because both of those require that the child physically lived with the parent.

The tax law for the Child Care Credit REQUIRES that the child care MUST be necessary in order for the parent to work and if the child does not live with the parent then the care is not necessary for them to work so it is not allowed.

[Opus 17]

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@Rachel14 wrote:

I never agreed to sign form 8332. Also my ex husband can’t claim a child without form 8332. Requirements are that he had a majority of the overnights according to IRS. The judge found me in contempt of court and said I was to allow my ex husband to violate federal law as she said he doesn’t need form 8332 to claim a child. I have filled out the identify theft form now as IRS asked me too. My ex husband doesn’t pay daycare costs only I do. The judge said I’m not allowed to write that off. I think the judge personally can be sued for her actions.

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A state judge can't legally order you to violate federal law.  But I can't tell you how to appeal or resolve this, you would need to discuss with your attorney.