I have a divorce agreement that allows me to claim 2 of my 3 kids on my return. My ex-spouse did not honor that agreement and I when I filed my return it got rejected.

[xmasbaby0 · Accepted solution]

Which one of you is the custodial parent--the one the children spent at least 183 nights with?  As far as the IRS is concerned that is who can claim the child as a dependent.  If your ex is not the custodial parent and claimed the children anyway, then claim them yourself and print sign and mail your return instead of e-filing it.  The RS will process your return and sometime later--maybe even a year later, the IRS will contact both parents to sort out who should/could claim them.  Your ex may have to pay back some of the refund received that was based on child-related credits.  (plus penalties).

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit + education credits if the child is a full-time college student.  The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[Opus 17]

If you are not the custodial parent, and the other parent didn’t give you a signed form 8332, there is nothing you can do on your tax form.  You would have to take your ex back to family court and get the judge to enforce the order and make your ex sign the form.  

[Carl]

When it comes to the children of divorced or separated parents, any divorce decree or separation agreement holds absolutely no weight with the IRS.

The IRS is a federal agency governed by federal law that can only be over ridden by a federal judge. Since federal judges do not deal with divorce, separation or custody cases I can tell you with 100% certainty that's never going to happen.

You have to follow the rules in IRS Publication 504 at https://www.irs.gov/pub/irs-pdf/p504.pdf

So if you are not what the IRS defines as the custodial parent, you must have a signed 8332 from the custodial parent in order to claim any of the dependents.

Now while your lower level judge can order the custodial parent to sign the 8332 and hold them in contempt of court if they refuse, you can't claim the child without that form. The IRS will not get involved in this matter either.