I let ex hub claim our son every other yr with a notarized agreement (not 8332 form). Can I reclaim my son every yr moving forward? He’ll refuse to sign/send form 8332!

[TreeLover]

Interesting! Thx everyone! I’ll hsve to keep a journal moving forward in order to substantiate proof that he’s with me 4 nights a week. I thought maybe child support would also be affected, so I need to make sure I have all the pertinent info before moving forward. I really appreciate everyone’s replies and info!!! The sad fact is his AGI is MORE than mine and I think that’s why I have been reluctant to move forward! Is there any truth to what others have told me to “file first” so that means the burden of proof lies on him rather than me?

[macuser_22]

AGI has *nothing* to do with it at all.   AGI is a tie breaker when both parents have lived with the child more than half the year and both parents meet the residency test.   That would only occur when the parents lived together with the child for all or part of the year.   AGI has no meaning whatsoever for parents that are divorced and do not live together.   The rules for divorced or separated parents that live apart apply as posted above.

[TreeLover]

So let me get this right, I have my son 208 days out of the year so I’m the custodial parent, but he has a higher AGI than me, but that only means he’s the custodial parent if we both shared closer to the same time/amount of nights?

I have him 208 nights he has him 157 nights and even though his AGI is more I’m still considered the custodial parent. Correct? They only use the AGI when we are closer to the same amount of time shared with the child, right? Kind of like a tie breaker?

[TreeLover]

Oh wow! Thx so much maciser_23

[DoninGA]

"Is there any truth to what others have told me to “file first” so that means the burden of proof lies on him rather than me?"  The answer is No.
If you e-file your tax return and it is accepted by the IRS, then any other party that tries to e-file a return with the same personal exemption as was entered on your tax return will have their e-filed return rejected by the IRS.  The other party will have to print and mail their tax return.
Since the IRS would have received two tax returns with the same personal exemption, they will investigate both parties as has been noted several times in this thread.

[TreeLover]

Macuser_22. Sorry bout the typo. These little phones! Hard to type on.

[macuser_22]

We were typing at the same time - see my comment about AGI above yiur comment.   There are no "tie breaking" rules for divorces parents.   Physical custody is all that matters.   It make no difference if he makes 10 million dollars and you earn ten thousand.  Income does not matter.

[TreeLover]

Thx so much! I feel better! I think I should fill out to revoke 8332 and be the first to file...moving forward. I’m terrified I’ll get audited and won’t be able to provide proof. That’s what holds me back! Does the IRS accept a journal? That’s a lot of reading on their part.

[TreeLover]

Yes, we were typing at the same time haha. Sorry. I guess the only proof I’ll have is journal....I’ll start that now for the year that he would claim (2018)! That’s really the only proof I can think of...I just hope it doesn’t affect child support, Bc if he’s not allowed to claim the child he’s within his rights to lower child support, I think?

[macuser_22]

Remember that if you both claim the child then he will also have to provide the same proof which he probably cannot do.  BTW: when two taxpayers claim the same child the IRS will *not* tell you who the other taxpayer is because of privacy laws.

[TreeLover]

So if neither can provide proof? What then?

[macuser_22]

"...he’s within his rights to lower child support, I think?..."  That is a legal question, not a tax question.  We cannot offer a legal opinion. That would depend on your divorce decree, any legal agreements and the laws of your state.  You need to ask your attorney that question.

[TreeLover]

True. Ok. So if neither can provide the appropriate proof what does the IRS do to us? I guess if I have a journal and he doesn’t that would help me!

[macuser_22]

"...So if neither can provide proof? What then?..."  Just answer the IRS's letters to the best of your ability and the IRS will decide.

[TreeLover]

Ok. Thanks so very very much for your time, patience and replies! I really appreciate it! Truly!!