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

[Hal_Al]

@M1991  said: 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.

Q. Would that apply? 

A. Yes.  Even when the other parent is claiming the child as a dependent (and getting the Child Tax Credit), you, the custodial parent, can still claim the Earned Income Credit, Head of Household Filing Status and the the Dependent Care Credit (if applicable).  

 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/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 dependency 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

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

[Opus 17]

@M1991 

“So what would happen…”

The IRS only follows its own laws, so the IRS would award you the dependent benefits. If your ex tries to file a tax return without form 8332 by saying that the child lived in their home, the IRS would also award them the dependent benefits. Then, about 9 months later, the IRS would send letters to both parents asking for proof of where the child actually lived.  Whoever has the better proof that the child lived in their home will be awarded the dependent and the other parent will have to pay back any tax benefits with penalties and interest. 

when the IRS asks for proof of where the child lived, they give the most weight to documents from unrelated third parties that show that the children lived in your home. For example, a copy of the school bus schedule showing that the child is picked up at your home five days a week. Letters from the school or from your children’s doctors that are addressed to your home because your child lives there.  Your lease, if you rent your home and your children are listed as occupants on your lease. Documents filed with the state to obtain family assistance that show the children lived in your home. Even social media photographs that show the children’s activities that were taken in your home will be useful.  You would need to build the case proving either children lived in your home.

separately, anytime you violate your custody order, the other parent could go to the Family Court and file a complaint. The Family Court could order you to sign the form, hold you in contempt, or assess other financial penalties.  In one case that a parent described on this forum some years ago, the judge was so annoyed that the parent disobeyed the order that the judge orderef the parent to sign a copy of form 8332 giving up the dependent permanently, that day right in the courtroom, or else the parent would be thrown in jail for contempt.  Every case is different, and you might have a good reason to refuse to sign, but I would never recommend that a parent disobey a court order without first getting competent advice from their attorney.

[M1991]

Thank you for all the great information you all have provided. Do you know if he would be eligible for the full child tax credit that was increased? I feel that why he’s pushing so hard. I haven’t had the court order altered because I’ve never had to worry about it because he’s never been in the picture and my son is almost 12 

[Opus 17]

@M1991 

Yes. If your ex claims the child as a dependent this year, your ex would receive the $3000 child tax credit. Your ex would also receive a $1400  round 3 stimulus payment, since presumably the IRS paid the stimulus that was for your child to you based on previous tax returns.

If you received the stimulus and do not claim your child as a dependent, you do not have to pay the stimulus back. If you received the advanced child tax credit and do not claim your child as a dependent, you would have to re-pay the advanced child tax credit. There is a payment forgiveness scheme for lower income taxpayers, You should review the questions and answers on this IRS web page.

https://www.irs.gov/credits-deductions/2021-child-tax-credit-and-advance-child-tax-credit-payments-t...

While I understand your situation, I can only repeat my general recommendation not to disobey a court order without professional legal advice from your own attorney. Good luck.

[JDastot]

Here’s the sticky part in all of this. Yes federal law overrides state law HOWEVER IRS Form 14815 allows the use of a STATE divorce or custody order to prove the legal right to claim a dependent. Thereby the IRS is giving credence and i believe legal standing to a state order that allows said state order to trump federal law. If you can use your custody document in an audit for instance to prove the legal right to claim a child on taxes and the IRS accepts this as proof that implies that the court order trumps the over 50% rule. I would imagine the IRS does this to ensure you don’t have a bunch of rogue parents doing whatever they want and bogging the IRS down with reports of fraud etc. Also in the case of joint custody you would get into getting down to half a day to determine the “over 50% of the time”. 

[Opus 17]

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@JDastot wrote:

Here’s the sticky part in all of this. Yes federal law overrides state law HOWEVER IRS Form 14815 allows the use of a STATE divorce or custody order to prove the legal right to claim a dependent. Thereby the IRS is giving credence and i believe legal standing to a state order that allows said state order to trump federal law. If you can use your custody document in an audit for instance to prove the legal right to claim a child on taxes and the IRS accepts this as proof that implies that the court order trumps the over 50% rule. I would imagine the IRS does this to ensure you don’t have a bunch of rogue parents doing whatever they want and bogging the IRS down with reports of fraud etc. Also in the case of joint custody you would get into getting down to half a day to determine the “over 50% of the time”. 

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Form 14815 asks for documents proving that the person claiming the dependent meets the conditions for claiming a dependent, which are listed in IRS publication 501 

The law is here https://www.law.cornell.edu/uscode/text/26/152

The regulations are here https://www.law.cornell.edu/cfr/text/26/1.152-4

A divorce decree or custody order may be used to claim a child if it was signed before Jan 1, 2009.  The fact that the IRS allows taxpayers to submit the custody order does not mean they will consider it, especially when the regulations say that custody orders from 2009 or later can't be used to claim a dependent, and only physical residency of the child counts.  

A custody order could be used as part of the proof of where the child physically lived, and it will be given more or less weight depending on the quality of other proofs submitted by both taxpayers.  But a custody order from 2009 or later can't be used as the only proof required to claim a child dependent. 

[lizdmca]

Curious NYS,

I have been going through this same issue, and came to your post telling Jemima to check her messages as you may have help for her.  Could you please share that information with me if you still have it?  I know it has been a few years and you may not even remember what information you had to help her in Family law court fighting the judges "right" to take a custodial parents right to file their child on their return.  I am afraid of going to jail if I don't sign the court decree and document attached.  Please help!

[Opus 17]

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@lizdmca wrote:

Curious NYS,

I have been going through this same issue, and came to your post telling Jemima to check her messages as you may have help for her.  Could you please share that information with me if you still have it?  I know it has been a few years and you may not even remember what information you had to help her in Family law court fighting the judges "right" to take a custodial parents right to file their child on their return.  I am afraid of going to jail if I don't sign the court decree and document attached.  Please help!

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You are posting to an old discussion that started more than 5 years ago and now has more than 100 replies, comments and add-on posters.  You should probably start a new discussion topic for your unique circumstances.

In general, a family law judge acting under state law can't override federal law on income taxes.  

Let's review the situation where the court orders that spouse A can claim the child as a dependent, but spouse B is entitled under federal tax law.  In order for spouse A to claim the child, they need a signed release from spouse B.  If spouse B does not provide a signed release, spouse A can complain to the family court, but can't claim the child as a dependent on their tax return even if the order allows it (because federal law supersedes state court orders).  The family court can issue various orders or penalties to spouse B, but spouse A has to go to court, they can't just claim the child on their tax return. 

But you may want to start a new topic for your specific situation. 

[Rachel14]

My family law judge said you don’t need to file form 8332 to claim a dependent even if they lived with you less then half the year. She for sure superseded federal law. So anything is possible. My divorce order never said I had to sign form 8332. I didn’t want my signature going to my ex or any personal information. 

[Opus 17]

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@Rachel14 wrote:

My family law judge said you don’t need to file form 8332 to claim a dependent even if they lived with you less then half the year. She for sure superseded federal law. So anything is possible. My divorce order never said I had to sign form 8332. I didn’t want my signature going to my ex or any personal information. 

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No.  Family court judges can't override the IRS.  If you are the custodial parent and refuse to give your ex the signed form when required, and your ex takes you to court, you could be held liable.  (Alternatively, your ex will try to claim the child, will get denied, will complain to the court, and the court will refuse the case because the judge doesn't understand the law.)

If you are the non-custodial parent and you claim the child without a signed form, and the other parent also claims the child, you will face an IRS investigation.

Many lawyers and judges just don't understand the rules, but that doesn't mean they don't exist. 

"Regardless of what the custody orders the court has issued, federal law determines your federal tax status. Therefore, the IRS requirements supersede a county or state court order."

https://www.findlaw.com/family/child-custody/child-custody-and-taxes.html

[Rachel14]

My divorce order didn’t specify ever having to sign form 8332. And my ex never asked to have me sign one. So in order for me to be held in contempt for violating it the verbiage would have needed to be in the court order. 

[Opus 17]

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@Rachel14 wrote:

My divorce order didn’t specify ever having to sign form 8332. And my ex never asked to have me sign one. So in order for me to be held in contempt for violating it the verbiage would have needed to be in the court order. 

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Not really.  If your order says "you must allow the other parent to claim the child in alternate years" or something like that, the court may decide that implies you will follow any IRS procedure needed to make that happen.  (The court could also decide not to enforce its own order.  Or if the parent complains one year, the court can modify the order for future years to be more specific.)

However, it is also true that a non-custodial parent can claim the child without a signature from the custodial parent if their custody order was signed by the judge in 2008 or earlier, by attaching a copy of the custody order to their tax return.  Since that was 13 years ago, and the special rules for children of divorced parents only apply when the child is a minor (under 18 in most states), that provision only applies to children between the ages of 13 and 17 as of the 2021 tax season.  It is an important exception that should be kept in mind, but does not apply to most divorced or separated parents. 

Some years ago, there was a post from a parent who refused to sign the necessary paperwork, and the judge took away their right to claim the child for the rest of the child's minority (until they turned 18) and forced the parent to sign a blanket form 8332 right there in court or else go to jail for contempt until they signed.  

Certainly everyone's experience is unique and individual, but I have a responsibility to report what the regulations actually say.

https://www.irs.gov/forms-pubs/about-publication-501

[Rachel14]

Why would my judge say that form 8332 is not required for the non custodial parent?

[Sballerstein]

Even if the non custodial doesn't utilize any of his parenting time? He is in contempt for that. 

[Mike9241]

only the judge can answer your question.  The IRS would disagree. the non-custodial parent must include form 8332 or equivalent with their tax return to claim the dependent. 

here are the IRS instructions

Noncustodial Parent
Attach this form or similar statement to your tax return for each year you claim the exemption for your child. You can claim the exemption only if the other dependency tests in the instructions for your tax return are met.
If the custodial parent released his or her claim to the exemption for the child for any future year, you must attach a copy of this form or similar statement to your tax return for each future year that you claim the exemption. Keep a copy for your records.