My ex husband claimed my son as a dependent even though my son has lived exclusively with me for the year. He does not even have a bedroom in hi fathers house.

[tp2]

I have claimed my son as my depdendent, since I provided 100 percent of his care for the year.

[TomD8 · Accepted solution]

What you have to do in this circumstance is print your return and file it by mail.  When the IRS receives two returns each claiming the same dependent, they will contact each taxpayer for supporting information.  Then they will decide who is legally entitled to claim the dependent.  Winner gets the claim; loser gets a bill for additional taxes (and penalties, if any).

The IRS rule is that the right to claim a dependent child belongs to the custodial parent, which the IRS defines as the parent with whom the child spent the greater number of nights during the tax year. 

[tp2]

Thanks TomD8, does that mean that any divorce agreement where we alternated years of claiming our son is secondary to the fact that he actually spend every night/day at my house and I provided for almost every meal? Because my ex is arguing that it is his year to claim him, but he says that (and claims him) every year.

[TomD8]

The non-custodial parent CANNOT claim the child without a written release from the custodial parent.  The custodial parent can voluntarily release their claim by filling out IRS Form 8332 or equivalent, and providing it to the non-custodial parent.  The non-custodial parent then must submit the form with their tax return.

If your divorce decree went into effect after 1984 and before 2009, and it contained wording specifying 2016 as a  year in which you had to give up the claim, he could submit a copy of the decree instead of the Form 8332.  If the divorce went into effect in 2009 or since then, he'd need the Form 8332 or equivalent from you.  Hope this makes it clear.

Again, if this continues to be disputed, just submit your tax return by mail, claiming the child.  The IRS will settle it.

[tp2]

Thanks so much TomD8, it makes it clear, my divorce was final Sept 11, 2001. So I assume he will submit a copy of the decree, but I am going to fight it because there is no way this is fair.

[TomD8]

Per the IRS, this is what the decree would have to include:  

1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
2. The other parent won't claim the child as a dependent.
3. The years for which the claim is released.

The noncustodial parent must include all of the following pages from the decree or agreement:
 
Cover page (include the other parent's SSN on that page).
The pages that include all the information identified in (1) through (3) above.
Signature page with the other parent's signature and date of agreement.

I think you should just mail in your return claiming the child and let the IRS settle it.

[tp2]

Why is submitting my form by mail any more valid than by e-file? And what do I need to prove my son stayed with me for the entire year?

[TomD8]

If your ex-husband already submitted a return claiming the child, and you e-file your return after his, your e-filed return will automatically be rejected by the IRS computers.  That's why you have to print and mail.  
If the IRS questions the dependency exemption on your return, they will send you a letter which will tell you what kind of proof they want.  It might be a letter from a school or daycare official or a healthcare provider, something like that.

[tp2]

Thanks Tom.

[tp2]

To follow up, I efiled and the IRS has approved my refund.

[TomD8]

Which tells you that your ex-husband hasn't yet filed a return claiming your son.