Can the IRS overrule a court order allowing a non-custodial parent who pays child support to claim a child for five consecutive years?

[Hooked38]

@Opus 17 .  Thank you for your comments!  I have sent the IRS Form for the Ex several times now.  All our communication is on a court ordered system, not just email and SMS. So, I have a history of her saying no and she already filed for 2020.   The conversation has been forwarded to my attorney and sent to hers for action.  Now the waiting game but only for so long.  

[Opus 17]

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@Hooked38 wrote:

@Opus 17 .  Thank you for your comments!  I have sent the IRS Form for the Ex several times now.  All our communication is on a court ordered system, not just email and SMS. So, I have a history of her saying no and she already filed for 2020.   The conversation has been forwarded to my attorney and sent to hers for action.  Now the waiting game but only for so long.  

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Depending on your other financial situations, you can wait to file your original tax return as late as October 15.  If you think it will go past the regular May 17 deadline, you will need the automatic extension.  If you will owe tax, you must cover it with a payment by May 17 even if you apply for the extension. www.irs.gov/payments.

Or, you can file now and then file an amended return if you eventually get the form.  But amended returns are taking more than 6 months to process these days.

It depends on whether you can wait for the rest of your refund (if one is due) or if you expect the judge might issue some other financial remedy instead of the form 8332.  Good luck. 

[CWR17]

Situation: Father and mother have 50/50 custody. Mother does not work (disability benefits), father works full time. Father pays full child support- the fact he can claim child on taxes is factored in to child support. Father tends to have child more nights in a year than mother. Both parents are remarried. Her husband recently retired. Father’s wife works full time. Mother wants to claim child on taxes every other year. Mother wants half of child stimulus (maybe not correct term). Mother has hired a lawyer and taken father to court to get this accomplished. Court ruled mother gets half of $1400 child credit and must be paid in 10 days. Court also ruled mother can “claim” child every other year starting next year. According to previous research, father is custodial parent and cannot be forced to pay the mother more money than he already gives her. Father is trying to avoid hiring counsel. Extensive research (wife is also VITA certified directly because of this) has been done. Any other advice is greatly appreciated. Father is afraid of being held in contempt if he follows tax law guidelines vs. court order.  Thank you!

[macuser_22]

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@CWR17 wrote:

Situation: Father and mother have 50/50 custody. Mother does not work (disability benefits), father works full time. Father pays full child support- the fact he can claim child on taxes is factored in to child support. Father tends to have child more nights in a year than mother. Both parents are remarried. Her husband recently retired. Father’s wife works full time. Mother wants to claim child on taxes every other year. Mother wants half of child stimulus (maybe not correct term). Mother has hired a lawyer and taken father to court to get this accomplished. Court ruled mother gets half of $1400 child credit and must be paid in 10 days. Court also ruled mother can “claim” child every other year starting next year. According to previous research, father is custodial parent and cannot be forced to pay the mother more money than he already gives her. Father is trying to avoid hiring counsel. Extensive research (wife is also VITA certified directly because of this) has been done. Any other advice is greatly appreciated. Father is afraid of being held in contempt if he follows tax law guidelines vs. court order.  Thank you!

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Sorry, but this is a legal question, not a tax question, and we cannot comment on legal questions- ask your attorney.

The IRS does not get involved in legal disputes.   The IRS will award the dependent and benefits to the parent that the child lived with the longer part of the year unless that parent releases the dependent with a 8332 form, but a court can find the parent in contempt if they refuse to issue the 8332 required by a court order.

[Crazysteph420]

• My children's father took me to court for custody of my 2 children.   On August 10,2021 he got Temporary custody. On October 19,2021 he got custody  Ive custody of them since birth and have claimed them on my taxes the past years the Judge said that he could claim them this year even tho they have only been in his home for 4 months.  I was just wanting to know if he was actually allowed to claim them since the judge said he was but they haven't lived with him half the year.   Thanks 

[Hal_Al]

@Crazysteph420 

Q. I was just wanting to know if he was actually allowed to claim them since the judge said he was but they haven't lived with him half the year.  

A. Yes, but only for the dependency and child tax credit.  As the parent, with physical custody (more than half the year), for 2021, you should sign and give the father form 8332, to allow him to do so.  Even if the judge's order does not specifically call for you signing form 8332, it's inferred by the order allowing him to claim them.

You can still claim them, for 2021, for the Earned Income Credit ( EIC), Head of Household Filing Status (HOH), and the day care credit.  It's good idea to let the other parent know that you will be claiming those items, as many  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

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

Now, if you decide not to obey the court order; and  claim the dependency and child tax credit, then the IRS will come down on your side.  They don't care about court orders.  But you risk  the judge finding you in contempt of court. 

If the court order specifically allows the father to claim EIC, HOH, and/or the day care credit, you have a problem.  The order is not valid.  It would be illegal for the father to claim those items.  But that doesn't mean you won't get dragged back to court if you try to claim them.   

All of this is explained multiple times in the 9 pages of discussion above.

Caveat: I am not a lawyer.

[Opus 17]

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@Crazysteph420 wrote:

• My children's father took me to court for custody of my 2 children.   On August 10,2021 he got Temporary custody. On October 19,2021 he got custody  Ive custody of them since birth and have claimed them on my taxes the past years the Judge said that he could claim them this year even tho they have only been in his home for 4 months.  I was just wanting to know if he was actually allowed to claim them since the judge said he was but they haven't lived with him half the year.   Thanks 

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Per IRS regulations (federal tax law) only the parent who had custody more than half the year can claim the children as dependents.  The parent who had custody less than half the nights of the year can't claim them unless the parent with custody more than half the year, gives the other parent a signed dependent release form 8332.

https://www.irs.gov/pub/irs-pdf/f8332.pdf

You will not be in any violation of federal tax law if you claim your children this year.  It sounds, however, like you would be in violation of your court order.  If you refuse to give the other parent a signed form 8332, the court could order you to sign, hold you in contempt, or penalize you in other ways.  Before you refuse to give a signed form 8332 to the other parent, you should consult with your attorney.

If the children live with the other parent more than half the nights of 2023 (next year), then it would no longer be necessary for the other parent to get you to sign anything.  It is only needed this year, because the other parent didn't get custody until August.

[M1991]

Question. I have a court order from 11 years ago. The father has never been in my sons life and only came current on child support last year. The court order advises he can claim every other year so 2021 would be the year he can claim. My son has been in my home all year and the last 11 years. But he is trying to claim him this year. Because of the court order can he claim him or because he was in my household all year would that trump the court order and I should be able to claim him?

[M1991]

Should also mention that I was able to claim every year because he wasn’t current on child support during the past 10 years. 

[Mike9241]

There are two issues tax and legal problems. the IRS only recognizes custody. so if you have custody you can claim the child unless you provide the father with form 8332.  however, violating a court order will get you in legal trouble with the court if the father pursues the issue.  you should get legal advice.

if you both file claiming the child, the IRS will send each of you a notice asking each to amend. if neither does then the IRS will send a second notice asking for proof. the one providing the best proof gets to claim the child.  however, as stated if this is in violation of the court order then there can be legal problems

[Rachel14]

This makes sense now. Thank you for responding. 

[M1991]

So in the past he did file him on his taxes when he want supposed to so I amended the return. But I was able to claim that he lives with me so I was eligible for like other credits. Would that apply? Like although he’s actually claiming the child I can claim that he’s in my household? Not sure the best way to explain that. 

[Opus 17]

@M1991 

If the child lives in your home more than half the year, but you allow the other parent to claim the child as a dependent, either under court order or voluntarily, then you must give the other parent a form 8332 that you fill out and sign. This form lists the name of the child and the year or years for which that other parent is allowed to claim the child.

When you prepare your tax return, you will indicate that you had custody more than half the year and that you are giving the other parent a form 8332. TurboTax will still allow you to claim tax credits that are based on where the child actually lives — this includes the child and dependent care credit, EIC, and head of household status.

When the other parent prepares their tax return, they should indicate that they had custody less than half the year but are claiming the child because they have a signed form 8332. Their tax program will allow them to claim the child tax credit, and possibly a stimulus payment for 2021, but will not award any of the residency-based benefits. The other parent will also be required to mail the original signed form 8332 to the IRS within three days of submitting their e-filed return.

[M1991]

So what would happen if I do not allow him to claim although there is a court order that he can claim every other year. Reasoning is because he has never been in my child’s life and I don’t feel he should be able to claim but I don’t want to get in trouble. 

[macuser_22]

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@M1991 wrote:

So what would happen if I do not allow him to claim although there is a court order that he can claim every other year. Reasoning is because he has never been in my child’s life and I don’t feel he should be able to claim but I don’t want to get in trouble. 

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He could go to the court that issued the order and possibly have you held in contempt if you fail to comply with the court order and issue a 8332 to him releasing the dependent to him.   Talk to your attorney for advice.