Ex has not filed taxes 3-4 years. He owes me close to $11,000 in back child support. Can I claim both of my children or does the agreement supersede?

[Lisa995]

Do the children live with you?

[Tojo]

Yes they do

[Critter]

FYI ... you could tell the IRS where he lives and that he has not filed .... <a rel="nofollow" target="_blank" href="https://www.wikihow.com/Turn-Someone-in-to-the-IRS">https://www.wikihow.com/Turn-Someone-in-to-the-I...>

However he may be filing but not getting a refund that can be attached ... many people do that to avoid paying a debt.

[Tojo]

He told me that if I claim both children I will owe him money and that I will be breaking the law.  Is this true?

[Critter]

Do you have a court order allowing him to claim the children ?   In that doc does it require you to give him a signed form 8332?

[Tojo]

Court order allows him to claim one child on alternating years.  Not sure about the 8332.

[Opus 17]

If you have never given your ex a signed form 8332,  then you may have been allowing your ex to claim  dependent status as if the child lived with him. This is not only improper, but it may have deprived you of certain tax benefits, particularly if you pay for childcare so that you can work, or if you qualify for earned income credit. You may want to talk with a tax advisor about amending some of your past tax returns. Of course, this will cause his returns to be examined but if he has been claiming improper dependents, that's his problem.

[Tojo]

I never gave my ex an 8332 document. He requested one during a year he didn’t pay taxes but he never got one from me.

[Opus 17]

Well, the bottom line is that if you have custody, the IRS will give you the dependent exemptions and the IRS doesn't care about your divorce or custody order.  Your ex could take you to court and ask the court to order you to sign the form over to him for this year, but that's a risk for him if he is behind on child support.

If he does file and both of you claim the same dependents and he files first, you may be blocked from e-filing.  In that case, just print your return and mail it in and let the IRS sort it out.  When they eventually investigate, they will be wanting proof of where the children lived.  This can be pictures, social media posts and other information showing they lived with you.  The IRS especially likes proof from trusted third parties, such as letters from schools and doctors about your children that are sent to your house, proving they live with you.

[Critter · Accepted solution]

OK ... the IRS rules say that you are the custodial parent and you have the choice .... but if there is a court order then if you don't comply he can take you to court for not following the order.  HOWEVER ... the non custodial parent is limited on what they can claim ... see the rules here on how the child is split in a divorce situation ....

The parent with whom the child lives more than half the year (184 or more 184 nights for 2016) is automatically entitled to claim the child as a dependent. This is the custodial parent. (IRS determines custody based on where the child lives, not any court order or agreement.)  The non-custodial parent is not entitled to claim anything.

However, the custodial parent can sign a release (form 8332) allowing the non-custodial parent to claim the child as a dependent.  You can download this form from the IRS web site.  The custodial parent signs it and gives it to the non-custodial parent and the non-custodial parent mails it to the IRS after e-filing the rest of their tax return.  In this case, the non-custodial parent can claim the dependent exemption and the child tax credit.  The non-custodial parent can never claim earned income credit, the dependent care credit (day care credit) or use the child to qualify for head of household status.  Those benefits always stay with the custodial parent.

[Opus 17]

The parent where the children live, who has actual physical custody more than half the nights of the year, is the only parent who is automatically entitled to claim the children as dependents. Regardless of any divorce order.   Federal tax law trumps any state law or court order. 

 The only exception is if you have a divorce that was signed in 2008 or earlier, which gives him the right to claim the children as dependents in certain years, and which contains certain specific language. If that is the case, then he can claim them as dependents by attaching a copy of the divorce decree to his tax return. 

 Otherwise, only you are entitled by the IRS to claim your children as dependents. He cannot claim anything unless you give him a signed form 8332 which releases the dependent exemption for certain years.  Form 8332 can be signed for one year at a time or it can be signed for several years in advance. If you gave him a signed form 8332 several years ago and that form gives him the right to claim the children this year, then it is too late to retract the form for this year. However, if he does not have a signed form, then he can't claim anything. 

 His only recourse would be to go to the Family Court judge and ask the judge to order you to sign the form or hold you in contempt.  I don't think he realizes this is the case, because if he is behind on his child support, going to the Judge to ask for an order against you would be putting himself at greater risk. So I think he is either ignorant, or bluffing. 

 However, the risk is on you. You may want to consult with your family law attorney. If you claim the children as dependents and he also does, then the IRS will start an investigation of both of you. You would need to provide proof that the children lived with you. 

 Also important: even if he is allowed to claim the children because of a pre-2009 divorce order or a signed form 8332, he can only claim the dependent exemption and child tax credit. The ability to qualify for head of household, claim EIC, and the dependent care credit, always remain with the parent who had custody more than half the nights of the year. Those tax benefits can never be waived, transferred, or released to a noncustodial parent.   In TurboTax, you would enter the children, state that they lived with you more than half the year, and that you are transferring the exemption with the signed form 8332. TurboTax will give them the proper status to claim head of household and EIC without claiming their dependent exemption. 

[Coolgirl421]

The non- custodial parent has not filed taxes in years and works for cash so he can avoid paying me back child support. Our children are both way over 18. Will I get his stimulis payment even though he has never filed?

[macuser_22]

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@Coolgirl421 wrote:

The non- custodial parent has not filed taxes in years and works for cash so he can avoid paying me back child support. Our children are both way over 18. Will I get his stimulis payment even though he has never filed?

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Unless he filed a 2018 or 2019 tax return then there is no stimulus payment at all.  The 2020 stimulus is actual based on the 2020 tax return next year but advance payments are being sent based on the income reported on the 2018 or 2019 tax return.