Claiming a dependent question.

[ADJAZ21]

My child lives in my home and has for almost 3 years. Per our divorce decree the mother is the custodial parent and can claim our child on taxes however she has not seen the child or provided any care for our child since our chils has moved in with me. Can I claim my child as a dependent without mother's permission or is the mother still allowed to claim our child even though our child has not lived with the mother or spent any nights with the mother in 3 years?

[Hal_Al]

Q. Can I claim my child as a dependent without mother's permission?

A. Yes, as far as the IRS is concerned. The IRS doesn't care about your divorce decree, unless it is dated before 2009. The IRS goes by it's own rules and will award the dependency to the  parent with physical custody, if both parents try to claim the child. The other parent's  only remedy against the ex is to take her/him back to court for sanctions.

Q. Or is the mother still allowed to claim our child even though our child has not lived with the mother or spent any nights with the mother in 3 years?

A. That's a legal question, rather than a tax question. It depends on the terms on of the decree. But, as previously stated, the IRS doesn't get involved in interpreting divorce decrees. It goes by physical custody (not legal custody).

For a fuller discussion, on this topic, see: https://ttlc.intuit.com/community/after-you-file/discussion/tax-year-prior-to-2020-my-ex-claimed-our...

In particular, note the "special rule", repeated here:

 There is a special rule in the case of divorced & separated (including never married) parents. When the  parent, without physical custody, is claiming the child as a dependent/exemption/child tax credit; the parent with physical custody 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 a 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.

[rjs]

There is a conflict between your divorce decree and the tax law. Under the tax law, you are the custodial parent because the child lived with you all year. Under the tax law, you can claim the child as a dependent. You do not need the mother's permission to claim the child. The IRS is not bound by your divorce decree, and the divorce decree cannot override the tax law. If you file your tax return claiming the child, the IRS will go along with that.

However, if you claim the child, you would be violating the divorce decree. The mother could take you to court for that, and ask the court to enforce the divorce decree.

You can give the mother permission to claim the child as a dependent by signing Form 8332 and giving the signed form to the mother. Doing that would satisfy both the tax law and the divorce decree. This would be the simplest way to resolve the conflict, but it means that you cannot claim the child. The court could probably order you to give the mother a signed Form 8332 allowing her to claim the child.

Even if you allow the mother to claim the child as a dependent, since you are the custodial parent according to the tax law, you could still use the child for the earned income credit and the child care credit, and to allow you to file as head of household, provided that you meet the other requirements for those benefits.

You should probably discuss the situation with your divorce lawyer.