Taxes

[LG4273]

Question so on me and my ex’s divorce decree, it states that one parent can claim on even years and one on odd years. But I have sole physical and legal custody of our daughter, and he only sees her every other weekend if that. He does not ever have her 6 months or half of the time out of the year. So my question is where it is stated in the divorce decree, but he is putting on his tax return he has her that much out of the year when he doesn’t, can he get in trouble for that and can I tell him no he isn’t claiming her because I have more custody? 

[xmasbaby0]

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.  If the child is 17 or older the non-custodial parent gets the $500 credit for other dependents.

If you and the other parent have a signed agreement, you need to indicate in MY INFO that you have such an agreement.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[LG4273]

I have some physical and legal custody I have her all the time besides every other weekend. We do have a divorce decree that states we both can claim every other year yes. We have not signed that form. 

[DavidD66]

Without a signed Form 8332 waiving their right, the custodial parent has the right to claim the child (assuming the child meet the all requirements to qualify as a divorce dependent).  If you don’t follow the divorce decree, and claim the child in a manner that doesn't follow your divorce decree, your ex-spouse might have a legal claim against you. But that's a legal matter beyond the scope of this Community. 

[xmasbaby0]

The IRS cares about physical custody.   Courts often make up rules for divorced parents that do not align with IRS rules.   The IRS does not care about your divorce decree.   We do not give legal advice here.   Only you can gauge the risk of how contentious your ex-spouse might become if you go ahead and claim the child on your own tax return.  The child cannot be claimed on two returns.

[Hal_Al]

Q. Can I tell him no he isn’t claiming her because I have more custody?

A. NO! The divorce decree overrides the IRS rules*.  But, you do get to (and should)  tell him that he doesn't get all the tax benefits.

 There is a special rule in the case of divorced & separated (including never married) parents. When it's the non-custodial parent's year to claim the child as a dependent and the 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.  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 a 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)"

You can if you are the custodial parent.  The custodial  parent is the parent the child lived with for more than 183 nights in 2024

*Technically, if you both try to claim the child as a dependent/child tax credit, the IRS will rule in your favor. The IRS no longer tries to decipher divorce agreements. They go by their own rules.  The ex's only remedy is to take you back to court; where judges take a dim view of contempt of court actions. 

[LG4273]

Oh that is so great to know thank you so much. So for the years that he has been claiming her on all the credits, because I didn’t know can I do something about that? 

[Vanessa A]

You can Amend Your Return for the past 3 years.