If someone else claimed your
child inappropriately, and if they file first, your return will be rejected if
e-filed. You would then need to file a return on paper, claiming the
child as appropriate. The IRS will process your return and send you
your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive
a letter from the IRS, stating that your child was claimed on another return.
It will tell you that if you made a mistake to file an amended return and if
you didn't make a mistake to do nothing. The other party will get the same letter
you did. If one of you doesn't file an amended return, unclaiming the child,
the next letter, from the IRS, will require you to provide proof. Be sure to
reply in a timely manner.
Winner gets the tax benefits;
loser gets to pay the IRS back with penalties and interest. The
custodial parent almost always wins. 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.
https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030
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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
Yes, the IRS expects you to count the numbers
of nights the child sleeps at each parent's home. It is allowed for you to arrange the
child's schedules so that the child spends more than half the year with the father
one year and more than half with the mother the next year so that you are each the
custodial parent in the year you claim the child, so that you can claim full
benefits.
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: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897
