Tax Year Prior to 2020: My ex claimed our child, but our court order says I'm supposed to claim her. Can I e-file without claiming her and then mail an amendment once it's available?

[Hal_Al]

Yes, you can do that but you don't want to.

There are several things you need to be aware of:

1. The IRS doesn't care about your court order, unless it is dated before 2009. The IRS goes by it's own rules and will award the dependency to the custodial parent, if both parents try to claim the child. Your only remedy against the ex is to take her/him back to court for sanctions

2. If you are the custodial parent and If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.  

https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030

3. The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. (without conditions - usually the payment of child support). Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf. 

For tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. In the rare case (could probably only happen in a leap year like 2016), where the time that  each parent has the child is exactly equal, then the parent with the higher income (AGI) is the custodial parent, for the purpose of determining who has first priority on claiming the child as a dependent. 

4.There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use: 

 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/exemption/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 exemption to him. 

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[topooz]

If I am reading this correctly, If somebody got divorced in 2012 and in the divorce degree states the non-custodial parent gets to claim SOME of the kids on his taxes.  He still can not claim the kids unless the custodial parent signs form 8332?

[SweetieJean]

Correct. However, the Family Court can compel the signing of Form 8332.

[DexterS]

Yes, you could do it that way.

Or, you could paper file and claim her now.

You will not be able to efile with her on the return because the return will be rejected since your Ex has already claimed her.

Be prepared to supply documentation of your right to claim your daughter when the IRS asks for it.

[hayleeecampbell]

What would be an example of documentation to claim a child when the IRS asks for it?

[Hal_Al]

Simple answer: there is no documentation, other than a signed form 8332, that will convince the IRS to allow you to claim the child.

The one exception is a court order dated before 2009. From IRS Pub501: If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following:
1. The noncustodial parent can claim the
child as a dependent without regard to any
condition, such as payment of support
2. The custodial parent will not claim the child
as a dependent for the year
3. The years for which the noncustodial parent,
rather than the custodial parent, can
claim the child as a dependent
The noncustodial parent must attach all of
the following pages of the decree or agreement
to his or her tax return
• The cover page (write the other parent’s
social security number on this page)
• The pages that include all of the information
 identified in items (1) through (3)above
• The signature page with the other parent’s
signature and the date of the agreement

[Moo92]

If my court paper work stated I am to claim child as dependent and my ex did, will court documents be approved if the form 8332 was not filled out by me. ?

[WKins2]

Yes you can do that if you need to. You can file your federal and/or state tax returns without claiming your dependent and then file an amended return claiming her once the amended returns are available.

You should not try to amend your return until the original return it has been fully processed and you have received your refund or your payment has cleared.
Amended returns do not “catch up” to your original return and replace them; they are processed as two separate returns.  
 

Amended returns have to be printed and filed by mail.  It can take the IRS up to 12 weeks or longer to process them.   If you are due a larger refund than on your original return, your amended return should only show the difference and you will receive a separate check for it.  If you owe money on your amended return, it will show only the new amount owed, you will have to mail a check with the return.

You can check the status of your amended return by clicking here: https://www.irs.gov/filing/individuals/amended-returns-form-1040-x-/wheres-my-amended-return-1

Click here for amending instructions: https://ttlc.intuit.com/replies/3288565

[Alwhitley22]

So you are saying the IRS will still issue my refund at the normal time if my ex claimed our child without consent and I had to file mine through the mail?

[KarenM90]

If you file your return via mail it could take 6 weeks or more for the IRS to process your return.  This is from the IRS Where's My Refund Site:

The IRS issues most refunds in less than 21 days, although some require additional time. You should only call if it has been:

• 21 days or more since you e-filed
• 6 weeks or more since you mailed your return, or when
• "Where's My Refund" tells you to contact the IRS

Here is a link to the Where's my Refund Page: Where's my Refund

It can take 8 weeks for more for IRS to process Amended Returns.

Here is a link to the Amended Return Status Page on IRS.gov:  Where's my Amended Return?

[llorraine82011]

I have a question my child custody papers says that my ex is allowed the income tax dependency deduction for my daughter.  Even though... I am the custodial parent.  Does that mean that I can claim my daughter for earned income credit??  I read an article that said there was the rule that the non-custodial parent can never claim earn income credit, head of household, or daycare credit. Is that true?? 

[DMarkM1]

Yes, only the custodial parent may claim the Earned Income Tax Credit and Child and Dependent Care Credit.  Here is an IRS link with more information.  In TurboTax to accomplish this when answering the dependent questions: 

• For number of months the child lived with you and in the US, the numbers should be greater than 6 months. 
• When asked if you have a custody agreement, divorce decree or other written agreement, answer "yes"
• When asked if your child's other parent will claim him/her this year per legal agreement, answer "yes" (the other parent will claim the child).

In doing so, TurboTax will include the child on your return for EIC, Head of Household if applicable and dependent care credit only.

[Jrherm5115]

My situation is slightly different, but I'm having the same fallout.

I am a stepparent to 2 children who spent 9 months of 2019 living with their father and myself (we are married). They had limited visitation with their mother in that time (no overnights). She regained 50/50 custody in Oct 2019 and then took full custody in November 2019. She has claimed them both on her taxes, my claim for them was rejected on e-file.

I file married filing separate due to my husband being a disabled veteran who gets VA benefits and they are not taxable.

By IRS rules it seems the children should be mine to claim for 2019. Am I correct and how do I appeal?

Thanks for any help.

[Alwhitley22]

If the children lived with you more than 6 months during that year then you are the entitled parent to claim them. You would just have to file through the mail claiming them and then a red flag will show up to the IRS that they were claimed twice and then they would send a letter out requesting the proof that the children lived with you for part of that year. Then the winner gets the money and the other parent has to pay back the irs. That is what I was told by the IRS when my ex husband claimed our daughter on his taxes without consent cause she lives with me full time.