Yes
& no.
The
IRS will not enforce court orders. In case of conflicting claims, they will go
by their own rules and their owns rules say the custodial parent has first priority on claiming the
children on her taxes; regardless of the amount of support provided by the non-custodial
parent. The
IRS goes by physical custody, not legal custody. The non-custodial parent can only claim
the child as a dependent if the custodial parent gives permission (on form
8332) or if it's spelled out in a pre 2009 divorce decree. Even if a divorce
decree, dated after 2008, gives the non-custodial parent the right to claim the
child, he must still get form 8332 from the custodial parent. A properly worded
decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf
If the custodial parent violates a court order, the non custodial
parent’s only remedy is to take her back to court.
There is a way to split the tax
benefits. For future negotiations with the other parent (and maybe even for
this year) the following info may be of use:
There is a special rule in the case
of divorced & separated (including never married) parents. When the
non-custodial parent is claiming the child as a dependent/exemption/child tax
credit; the custodial parent is still allowed to claim the same child for
Earned Income Credit (EIC), Head of Household(HoH) filing status, and day care
credit (DCC). 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 exemption to him. A court order
cannot give these items to him.
So, it's 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.
Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897
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