Does my pre-2009 divorce decree override form 8332’s revocation rule of waiting till the next tax year?

[vanillamack]

I was divorced in 2008 and have 2 kids. Per the decree, we each claim 1 kid. In 2013, I gave her an 8332 “for all future years” allowing her to claim both because I was over the income limit for child tax credit, so for formality sake, I let her claim my 1 kid (now she gets both) so at least someone gets the child tax credit. Now, I wish to “revoke” giving my kid away for my own deduction purposes. As this is a pre-2009 decree, it seems to be able to take the place of the 8332. Wondering if the decree will allow me to do that THIS year instead of waiting till the next-next year as the 8332 revocation rule states.

[NewGuy]

Assuming she is the custodial parent, your right to claim the one child is solely based on the divorce decree.  Since you released your right to claim that child using the 8332 after the divorce decree, the 8332 would override the divorce decree.   If she is amenable to allowing you to claim the one child, she can provide you an 8332 giving you the right. 

https://www.irs.gov/pub/irs-pdf/f8332.pdf

[vanillamack]

I can give her another 8332 to Revoke the right that I previously granted. From the language on the form, I give her the Revocation 8332 (as I am entitled per Decree) to her this year 2017 it doesn't take effect till tax year 2018 which I would file in 2019. Wondering if I can use the Decree to override this waiting period so I can claim the dependent this year.

[NewGuy]

The decree doesn't override it since the 8332 you gave her was written after the decree.  You gave up any rights from the decree when you signed the 8332 and that stays in effect until you are able to rescind it.  You are just trying to pretend you didn't sign away your rights.  The only way you can claim your child is have your ex sign the 8332 back to you, giving you the rights you gave away.

[vanillamack]

I'd say I'm trying to get my rights back in the quickest manner...since a 8332 revocation doesn't kick in till 2019. Thanks for the info!

[macuser_22]

That is correct.   Revoking an open ended 8332 does not take place until the year *after* filing the revoked 8332.

[macuser_22]

You have not indicated which parent the child(ren) physically lives with, which can make a big difference.

Be aware that legal custody that a court might grant and *tax custody* are not the same.  It is tax custody  that dictates which parent must sign the 8332 form.   Tax custody is strictly determined by which parent the child physically lived with more than 183 nights in the tax year.  *That* parent is the custodial parent for tax purposes and the non-custodial parent for tax purposes is the other parent.   It is the custodial parent under the tax rules that issues the 8332 to the other parent, or in place of the 8332, the other parent that did not live with the child can use the pre-2009 divorce decree in place of the 8332 if the decree meets the IRS requirements.

The 183 night test applies to each child for each tax year and can change year to year depending which parent the child lived with.   Read the 8332 instructions that define the release.  If *you* were not the parent where the child physically lived then *you* would not provide a 8332 to the other parent since you were not the custodial parent and you did had nothing to release.   It depends on which parent the child(ren) lives with which you have not said.

8332 form and instructions:
<a rel="nofollow" target="_blank" href="https://www.irs.gov/pub/irs-pdf/f8332.pdf">https://www.irs.gov/pub/irs-pdf/f8332.pdf</a>

Also many (or most) pre 2009 divorce decrees decrees do not meet the IRS requirements to be used in place of a 8322.

See IRS Pub 17
<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897">https://www.irs.gov/pub...>

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.

I would suggest that you review the special rules for divorced or separated prents that live apart in Pub 17 that I referenced and the detailed 8332 instructions that also deal with it to see if the rules have been correctly applied in your case.

[vanillamack]

This is our Decree verbatim from 2008:
"Income Tax.  The parties agree that to file separate income tax returns.  Husband will claim Child1 as a dependent for tax purposes. Husband will be entitled to claim the Child Tax Credit and the Child and Dependent Care Expense credit for the child on his state and federal income tax returns. Wife will claim Child2 as a dependent for tax purposes. Wife will be entitled to claim the Child Tax Credit and the Child and Dependent Care Expense credit for the child on her state and federal income tax returns. Wife shall execute IRS Form 8332 for Husband as the non-custodial parent to claim said exemptions and credits for Child1. Wife shall execute IRS Form 8332 for each subsequent year as needed and requested by Husband."

I think the part of the "test" that I am missing is #3 regarding the years that this applies. Thinking that no statement of years would imply ALL YEARS.

Over the years, Wife never gave me an 8332 to claim Child1. I just claimed Child1 and no big deal...IRS never said anything. In 2013, I said Ok fine you can claim Child1 and gave *wife* an 8332 so she could claim Child1. I didn't really have to because we had been doing so without 8332s for years.

Now that I want Child1 back, it seems I could issue a Revoked 8332 (which takes a while to be in effect) or maybe I can point back at the Decree that Wife should be giving *me* 8332s to claim Child1.

The closer I read the 8332, it seems geared for the custodial parent (Wife) to give claim-ability to non-custodial parent (me)...not the other way around. Does this make my 8332 that I gave Wife a moot point then?

[macuser_22]

*You* could not give a 8332 unless the child physically lived with you so the 8332 that you gave to your ex spouse meant nothing since you had nothing to release.  She was the custodial parent all along.   So you revoking a 8332 that did nothing, would not be necessary.   

Your divorce decree seems (I am not an attorney and only an attorney can give you legal advice)  to specify that your Ex spouse give you the 8322.    The decree also does not call for an "open-ended" 8332 but "for each subsequent year".   If the child lives with your ex, then you should ask *her* to issue you a 8332 so she would be in compliance with the decree.  If she refuses, I suppose you could go to the family  court that issued the decree for a contempt charge.

(BTW, once a child becomes 18 (or the age of an adult in your state if not 18) then the concept of custody and the 8332 becomes moot and the child can only be claimed by the parent that the child actually lived with.)