Can I file amended taxes without 8332 form if the custodial parent claimed child on a non qualifying year? He is refusing to sign the form.

[tialgore]

I have supporting documents from child support as well as filed custody papers indicating odd/even years for each parent.  The custodial parent filed before I did, stating I was in arrears, but documents show otherwise. Can I still file without the 8332 form?

[Opus 17 · Accepted solution]

 Generally, no. You can take your ex to family court and ask that the family court order her to sign the form, or hold her in contempt. But the IRS will not honor the agreement without the signed form. 

 The only exception is if the divorce was signed before 2009, and if it contains specific language stating three things. 

 1.the years when you are entitled to claim the dependent. 

 2.that she will not claim the child in those years. 

 3.you're right to clean the dependent cannot to be contingent on any outside factors, such as being current with child support payments.  You must have an unrestricted right to claim the child. 

 If your divorce decree meets these requirements in terms of language and years that it was signed. Then you can attach a copy of the divorce decree to your tax return instead of form 8332. 

[Critter]

One other thing ... the divorce decree cannot contradict IRS rules on what a custodial parent is for income tax purposes...

>>>If you are married filing separately and both parents live with the child, either parent can claim the child as a dependent and only they get all the child related benefits ... they cannot be split.

>>>If you are unmarried but live together with the child, either one of you can claim the child (or children) as dependents. If the parent who claims the child as a dependent also pays more than half the expenses of keeping up their home, they can file as head of household instead of single, which is slightly more favorable.  The other parent should not even list them in Turbotax, because there are some poorly worded questions that confuse some people.

>>>If you are unmarried (or never married) and live apart and share custody, then:

The parent with whom the child lives more than half the year (184 or more 184 nights for 2016) is automatically entitled to claim the child as a dependent. This is the custodial parent. (IRS determines custody based on where the child lives, not any court order or agreement.)  The non-custodial parent is not entitled to claim anything.

However, the custodial parent can sign a release (form 8332) allowing the non-custodial parent to claim the child as a dependent.  You can download this form from the IRS web site.  The custodial parent signs it and gives it to the non-custodial parent and the non-custodial parent mails it to the IRS after e-filing the rest of their tax return.  In this case, the non-custodial parent can claim the dependent exemption and the child tax credit.  The non-custodial parent can never claim earned income credit, the dependent care credit (day care credit) or use the child to qualify for head of household status.  Those benefits always stay with the custodial parent.