Ex claims every other year in our divorce agreement however he does not provide half of expenses. Does he still get to claim him?

[jenniferz_77]

My son lives with me full time except every other weekend he goes to his dads. According to our divorce agreement my ex is supposed to provide child support, insurance, and half of medical expenses. He only gives me minimum child support (total for the year is less than the child deduction in the tax) and does not provide insurance or pay any expenses at all. Is he still entitled to claim our son as a dependent?

[Phillip1]

Yes, assuming the statement in the divorce decree meets the requirements for a proper release. If your divorce decree was signed after 2008, the only purpose of the statement must be 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. Therefore, if the divorce decree has specific language that allows him to claim the exemption every other year regardless of child support compliance, the IRS will allow him to claim that exemption regardless of whether he is current on other obligations with the child.

The rules from IRS Publication 501 regarding allowing the non-custodial parent to claim a dependent are as follows:

1. The parents:

1. Are divorced or legally separated under a decree of divorce or separate maintenance,

2. Are separated under a written separation agreement, or

3. Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

4. Either of the following statements is true.

1. The custodial parent signs a written declaration, discussed later, that he or she won't claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement , later. If the decree or agreement went into effect after 2008, see Post-2008 divorce decree or separation agreement , later.)

2. A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2016 states that the noncustodial parent can claim the child as a dependent, the decree or agreement wasn't changed after 1984 to say the noncustodial parent can't claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during the year.

3. Written declaration. The custodial parent must use either Form 8332 or a similar statement (containing the same information required by the form) to make the written declaration to release the exemption to the noncustodial parent. The noncustodial parent must attach a copy of the form or statement to his or her tax return.

4.  The exemption can be released for 1 year, for a number of specified years (for example, alternate years), or for all future years, as specified in the declaration.

5. 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.

• The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.

• The custodial parent won't claim the child as a dependent for the year.

• 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 can't 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.