In my custody order, I agreed to alternate years on claiming my son on taxes w/my ex. However he refused to take visitation custody for 2 years now can I claim my son?
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In my custody order, I agreed to alternate years on claiming my son on taxes w/my ex. However he refused to take visitation custody for 2 years now can I claim my son?

In my custody order, I agreed to alternate years on claiming my son on taxes w/my ex. However he refused to take visitation custody for 2 years now can I claim my son?  

2 Replies
Level 15

In my custody order, I agreed to alternate years on claiming my son on taxes w/my ex. However he refused to take visitation custody for 2 years now can I claim my son?

 If the custody order was signed in 2008 or earlier, and if the order says which years your husband can claim the child and which years you will claim the child, and if there are no conditions on the claim (such as he must be current on child support or he must have visitation) then he can claim the child as a dependent by attaching a copy of the divorce order to his tax return and there is nothing you can do about it. 

In all other situations, the IRS awards the dependent to the parent who has custody more than half the year, that means the parent's home where the child sleeps more than half the number of nights of the year.    The noncustodial parent can only claim the child as a dependent if the custodial parent gives the noncustodial parent a signed form 8332.  This allows the noncustodial parent to claim the dependent exemption and the child tax credit. However, the ability to file as head of household, claim EIC, and claim the dependent care credit always stay with the custodial parent and can't be transferred.  If you do not give your ex a signed form 8332, then your ex cannot claim a child who you have custody of more than half the year as a dependent. 

 However, if you refuse to sign the form and you are in violation of the divorce order, your ex may be able to go to family court and file to hold you in contempt of court and force you to sign the form.  You may want to seek the advice of your attorney before you violate the court order. 

*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
Level 15

In my custody order, I agreed to alternate years on claiming my son on taxes w/my ex. However he refused to take visitation custody for 2 years now can I claim my son?

There is a way to split the tax benefits.
This may be helpful in your negotiations with the ex:
 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.

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.

Ref: <a rel="nofollow" target="_blank" href="http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897">http://www.irs.gov/publi...> Scroll down to "Children of divorced or separated parents (or parents who live apart)"
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