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

[DoninGA]

@Opus 17 Is one of the most knowledgeable users on this message board concerning tax issues.  This message board is not for the giving of legal opinions which would be totally useless anyway.  Recommendations from anonymous posters claiming to be attorneys, really.  

[Opus 17]

If you are convinced you are right, why bother asking here?

The tax advice is absolutely correct.  The IRS will not award a dependent claim of the non-custodial parent without a signed form 8332 from the custodial parent.  Everything else is a matter between you, your ex, and the judge.

Somewhere on this board, a year or 18 months ago, is a post from an ex-spouse who refused the sign the required waiver.  The judge was so pissed that he required the ex to sign a waiver form right there in the courtroom, awarding the dependent to the other parent for ALL future years, and if the parent refused to sign, they would be hauled off to jail right that instant and stay there until they signed.

Judges have a lot of power, and ignoring the plain language of an order because you think you can play word games is a dangerous strategy.

In my city, we currently have a criminal defendant, accused of trying to buy shotgun while on parole, her parole specifically ordered that she was not to possess any dangerous weapons.  She is trying to argue that an unloaded shotgun is not a dangerous weapon, and the charges should therefore be dismissed.  Care to take bets on how that turns out?

In any case, this is between you, your ex, and the courts.  Best of luck to you.

[scared187]

Yes you can be held in contempt of court and spend 30 day min.. in jail plus pay the other parent what you received for the child you claimed... Just ask my ex lol...

[stierkr]

A follow up question. In 2012, I signed an amended separation agreement stating that once my son turns 18, that we would rotate my daughter as a tax deduction every other year.  My daughter turned 18 in May 2019.  Although I was eligible to claim my son last year, I didn't because he benefited more than I did.  So technically, 2019 is the first year we would 'rotate' my daughter.  My daughter lives with me, I pay all of her medical, and I will be paying for her college.  The second year we would 'rotate' my daughter would be 2021 and then I would be done with the agreement.  Now my ex is refusing to provide my daughter with her funds from her 529 plan.  That being said, will the courts overturn the amended separation agreement in favor of me getting the tax deduction, especially since I am providing for her and my ex-husband is not?

[CuriousNYS]

Where would a custodial parent turn or what can they do if they were ordered in a county court to allow noncustodial parent to claim EIC along with form 8332. Clearly if form 8332 is completed it is perfectly legal for noncustodial parent to claim child for child tax credit but EIC is not allowed for a judge to compel but custodial parent can face jail if they violate an order by judge which is actually breaking federal law. Custodial parent attorney does not want to go against judge.

[Jemimaschmidt]

 Is there any caselaw or Court of Appeals cases that I can be referred to for a reference? The judge of my case has ordered that the child’s father have the tax exemption and child tax credit even though he has her for less than half the year and does not have custody .  I am in Arizona and I need something to give to my family law attorney who appears uninformed about this particular topic and tells me the judge can order whatever she wants to order and I have to comply or run the risk of losing custody and being in contempt of court . I have been the primary custodial parent for the last six years he makes twice what I make and judge ordered that the non custody parent should claim the child despite  me having her more than 50 percent of the time and I pay for health care and all medical and school related expenses. I  want to be able to refer my attorney  to cases that have been brought before the State Supreme Court I need to find cases where  A superior court judge has gone against the federal law and ordered the child tax credit to the noncustodial parent and it has been appealed .

[xmasbaby0]

@Jemimaschmidt 

Did you read this entire thread as carefully as you should have?  If you sign Form 8332, (which a judge can order you to do) that means the non-custodial parent can get the child tax credit.  As of your 2018 tax return, there is no personal exemption for claiming the child, so you have not lost that--everyone lost that as of the 2018 tax return.  

Even if you sign 8332, you still retain the right to the child care credit (if you pay a sitter to provide childcare while you are at work) and you still can get the earned income credit (if you otherwise qualify according to your income).

Like it or not, a judge can order that you sign the 8332, giving the child tax credit to the other parent.  You still get the other child-related credits.

If your attorney does not understand these basics of tax law you need a better attorney.

[Douglas4488]

I am the custodial parent. My Divorce decree says that the petitioner (which is me) may claim the minor child unless they do not benefit. I did not work in 2018 as I went back to school for my masters. Thus, I can not benefit. My ex is stating that means they can now claim the child and trying to force me to sign form 8232. My understanding is that I may claim but I am not required to claim if I do not benefit. The respondent is not even referenced. Am I right in thinking that signing the form is optional.and not required since the divorce decree does.not specifically state that the respondent can claim the child if I do not benefit?

[Hal_Al]

@Douglas4488 - Yes and no.  Yes, as far as the IRS is concerned, the non-custodial parent can only claim the child if you sign form 8332.  You are not required to do so, under IRS rules.

The real question is what is the intent of the divorce decree.  I'm not a lawyer, and have not seen the actual decree. But, I infer from what you describe that the intent is for the non-custodial parent to claim the child, when you get no benefit.  But, the IRS will not enforce that.  If you don't give the non-custodial parent form 8332, his/her only remedy is to take you back to court. 

[Carl]

I have not read through this entire thread, as it is rather long. But I can tell you this.

When it comes to the dependents of separated or divorced parents the IRS has their own rules that must be followed. The only entity that can over ride those rules would be a federal judge. Since federal judges do not handle separations, divorces or child custody issues, I'm highly confident in saying that will never happen. A lower court judge can not over ride federal tax laws. Period. (Even though some state level and lower judges incorrectly believe they can.) But there is one thing a lower court judge can do.

Basically, federal tax law on this is covered in IRS Publication 504 at https://www.irs.gov/pub/irs-pdf/p504.pdf What will matter to you starts on page 11 of that document.

Basically, the IRS says, "The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent."

Now what I lower court judge can do, is order the custodial parent (as defined by the IRS, not as defined by a lower court judge) to sign an IRS form 8332 giving the non-custodial parent the right to claim the child as a dependent on the non-custodial parent's tax return. If the custodial parent refuses to sign the 8332, then the court can hold the custodial parent in contempt of court. Even if the custodial parent still refuses to sign the 8332, the non-custodial parent just flat out can not claim the child. The IRS will not under any circumstances get involved in any legal proceedings concerning this either. The bottom line is, if the non-custodial parent does not have an IRS Form 8332 signed by the custodial parent, then the non-custodial parent can not claim the child. Period.

Now understand that even with a signed form 8332, the custodial parent can still claim the EIC for the child if they qualify and the non-custodial parent can not.

[Jemimaschmidt]

Any suggestions on how to argue the reverse in a family court forum? The judge ordered the custodial parent to waive the child tax deductions and related exemptions so the non custodial parent reaps the benefits contained therein. The family law attorney is baffled as to how to argue this however  and it seems that the family law judge is overstepping their legal authority when they do this? Surely someone ahs argues this?

[CuriousNYS]

Jemima please see your private messages in this site.  I am facing the very same thing and might find help for you.

[Jemimaschmidt]

I would like to know the legal argument/basis  of your answer? How would one argue this? I am not an attorney.

[Jemimaschmidt]

If the custodial parent has the child for the most nights of the year and is providing most of the dependent care how is it legal for a  county judge to order that parent to “voluntarily” waive the right to claim that child so the other non custodial parent can receive the child tax deduction? 

[Jemimaschmidt]

In regard to the child tax credit- the irs rules say that the custody parent is the one that the child resides greater than half the year. How does a family court judge have the authority to force the custodial parent to sign the 8332 form waiving the child tax credit?