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Did not file 8332

My ex wont submit the 8332 form because she says she is custodial, but I am custodial. What is going to happen?

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Level 15

Did not file 8332

Custodial Parent
These are a paraphrase of the IRS rules for divorced or separated parents that live apart.

[Note: Unless the parents have been separated at all times during the last 6 months of the year, these rules do not apply.]

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.

https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

This assumes that the child is under age 18 (in most states).  Once the child becomes an adult (Emancipated child), custody becomes mute and these rules no longer apply.(See examples 5 & 6 in Pub 17 for more information)

There is no such thing in the Federal tax law as 50/50, split, or joint custody. The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year. That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody). And yes they are that picky.

See Custodial parent and noncustodial parent  under the residency test in Pub 17

https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
-The Child Tax Credit

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.

-----------------
Post-1984 and pre-2009 divorce decree or separation agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
2. The custodial parent will not claim the child as a dependent for the year.
3.The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

* The cover page (write the other parent's social security number on this page).
* The pages that include all of the information identified in items (1) through (3) above.
* The signature page with the other parent's signature and the date of the agreement.

Post-2008 divorce decree or separation agreement.   The noncustodial parent cannot attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The custodial parent must sign either Form 8332 or a similar statement whose only purpose is to release the custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.

Form 8332 rules:
Attach this form or similar statement to your tax return for each year you claim the exemption for your child. You can claim the exemption only if the other dependency tests in your tax return instruction booklet are met.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal for an IRS e-file Return). See Form 8453 and its instructions for more details.

This must be done within 3 days of your e-filed return being accepted by the IRS.
http://www.irs.gov/pub/irs-pdf/f8453.pdf

**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**

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21 Replies
Level 15

Did not file 8332

Legal custody and tax custody are not the same.

There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

Which one are you, using the IRS definition?
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
New Member

Did not file 8332

I am the custodial parent because my child spent 190 nights with me last year, I have this documented on a calendar and have texts from her asking me to keep him extra (not sure if that would even be an acceptable doc to the IRS) plus I have an higher AGI than her so even if it was 50/50 for last year I would still be custodial.  Anyway, she has it in her head that she is still the custodial parent because I agreed to let her claim him every year on our divorce papers... which I am letting her do...I have just taken the HOH status and put in his child care expenses on my taxes and put him as my "qualifying child who is not my dependent" on the 1040A...I filed first and already got my return...she is just now filing and said she isn't turning in the 8332 because she doesn't need to because she is custodial... I am just concerned that this is going to come back on me somehow...plus it also bothers me that she thinks she is correct and will be claiming credits that she is not entitled to and in my opinion committing tax fraud.
Level 15

Did not file 8332

If the child lived with *you* more than 183 nights in 2016, then *you* are the custodian parent.  ONLY the custodial parent (you) would fill out a 8332 form and give it to the other (non-custodial parent at that parent could claim the child's exemption and child tax credit.    *You* do not need a 8332 since you are the custodial parent.

Higher AGI makes no difference for divorced or separated parents that lived apart for at least the last 6 months of 2016.  AGI only is used to break a tie-breaker when both parents lived with the child more than half the tax year.

Only you can file HOH and the Child Care Credit if otherwise qualified to do so.  No 8332 is necessary.

See below for all the requirements.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
New Member

Did not file 8332

Yes, I know I don't need the 8332....I filled it out and gave it to her because she is the non-custodial which I gave permission to let her claim our son, so she needs the 8332 so that the IRS knows she ISNT custodial....she is NOT turning in the 8332 because she is insisting she IS the "custodial parent" because she doesn't understand how it works and thinks because I agreed to let her claim our son, that makes her custodial...basically she is stupid...sorry for being blunt. Anyway, so she is filing as if she is the custodial parent (claiming credits she shouldn't be claiming as a non-custodial) and NOT including the 8332 that I gave her because she says she doesn't need it because SHE is custodial...  So when the IRS sees my return as being Custodial (even though i didnt put my son as my dependent, i just used him as a qualifying person) AND her return being as custodial what is going to happen? Will she get the audit?
Level 15

Did not file 8332

If a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will reject since the child's SSN has already been used.

Your only recourse is to file a correct tax return, claiming what you are entitled to claim, then print and mail the return.

The IRS will process both returns and pay any refunds.   Shortly (within a year) the IRS will mail letters to both taxpayers asking if their tax return was filed in error and suggesting that they amend if they improperly claimed the child.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to claim the dependent, such as proof that the child physically lived with them more than half the year.   School records, child care records, household receipts, medical bills, etc., that show that the child lives with you should be retained.

The IRS will evaluate each taxpayers claim and award the dependent to one taxpayer, the other will have to payback any refund received plus interest and possible penalties.   The parent that had physical custody usually always wins.

Do not ignore the letters or you will loose.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
New Member

Did not file 8332

When you say "claims the child" I did not claim him on my taxes as a dependent...I put him down as a "qualifying person, who is not my dependent" on the 1040A in order to get HOH status and put in my child care expenses...so he is not in my dependent section of 1040A...is what I did the same as "claiming the child" as you are referring to above...his social security number was not used in the dependent section...and my taxes were already filed and accepted and paid back to me...so is this going to cause her taxes to be rejected? Even though I did NOT claim an exemption for my child?
Level 15

Did not file 8332

You would enter this way:

If you are the custodial parent where the child did physically live for more than half the year (183 nights) then:

When you enter the dependent, you say that he/she is "Your child" (not you and your spouse if remarried),
he/she lived with you the whole year,
“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement,
and "yes", the other parent is claiming this year.  

That will give you the EIC,  Child Care Credit and Head of Household filing status if you otherwise qualify.

The other (non-custodial) parent can claim the child’s exemption and child tax credit only and needs a signed 8332 form to do so.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
Level 15

Did not file 8332

What I posted before was if the other parent claims the child and all the credits, as you suggest that she will do and claim the same credit that only you are entitled to claim.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
New Member

Did not file 8332

Thank you for your responses, they are very helpful.  But my whole problem is that she will NOT accept the 8332 that I gave her because she thinks she is the custodial parent... so she is going to go ahead and file like she is the custodial parent (lie to the IRS basically because she thinks she had him more nights). This is what I am concerned about it coming back on me some how. I have done exactly what you said above with filing my taxes...but she thinks she doesn't need the signed 8332 that I gave her. What kind of out come will this have once she files?  Will it reject her return? Will she get audited? Will I get audited?
New Member

Did not file 8332

She is trying to claim everything, HOH, EIC, Child Care Credit, exemption, child tax credit...by telling her tax person that she is the custodial parent.
Level 15

Did not file 8332

I answered that in my comment above as to what will happen and the letters that you can expect from the IRS.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
New Member

Did not file 8332

If I am asked for proof of child living with me for more than half the year will the IRS accept pictures of my ex asking me to keep him on her time and a calendar of me keeping track of the nights total that I had him, because I documented all of that?  How does medical records and school records prove he lived with me for more time?  I am concerned about covering my butt because I am anticipating a huge war if she gets audited and I want to be prepared.
Level 15

Did not file 8332

Medical records and school records with your address could help establish  that the child lived with you.   

You will have to determine what documents you might have or need to prove your claim.  The IRS makes the final determination.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
New Member

Did not file 8332

ok thank you for all of your feed back, very helpful!
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