In my custody agreement, I agreed to alternate years on claiming my son on taxes w/my ex. If he doesn't request an 8332 form, can I claim my son regardless of the year?

[rcampbell410]

I agreed to alternating years on claiming my son on taxes with my ex husband.  However, my son is with me 90% of the time and my ex doesn't pay his part of our son's medical expenses. If he doesn't request the form 8332 from me nor do I sign the form, can I legally claim my son regardless of the year?

[Hal_Al]

Legally: no.

Get away with it: probably.

The IRS will not enforce court orders. They go by their own rules. 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 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. If you claim the child in violation of a court order, his only remedy is to take you back to court. The IRS will rule for you. But, judges don't like their orders violated.

You should know that  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, Head of Household filing status, and day care credit. 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. A court cannot order you to allow him to claim those items.

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.

 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.

[beanlynch]

If your ex doesn't pay his part of the medical expenses I would go back to court to request it instead of going against a child custody court order which the IRS won't enforce but which the issuing Judge can in other ways. Consider if there are things in this order that work in your favor. If your ex takes you back to court because you broke the agreement, you're the one who will be on record as breaking the agreement so you should prepare to have all those issues up for grab again. If you take him to court for what he hasn't paid, then he'll be the one on record as breaking the agreement.

What I would do is write an email to your ex about unpaid medical expenses stating the amount owed and requesting a date that he will be able to pay you buy and attach all receipts which is important because he doesn't have to pay you if you don't provide proof of payment. That way you have electronic documentation that he was sent this information. If he does not response send your own response in respectful language stating that you are still waiting for a response. This is not only documentation of the debt and your providing the information needed for it, but it also documents that you're being respectful and cooperative in trying to claim it. Judges care about that because ex-spouse/lover/partner drama is childish when a child is in the center of it and parents are expected to be professional and adult in their co-parenting.