There’s a misconception among many divorced parents about who gets to claim the tax exemption for the children. The rules are pretty simple, so let’s spell them out.
In a typical post-divorce situation where the parents together are providing more than 1/2 the support of the children, where the divorce decree is silent about who should claim the exemption, and where there has not already been an exchange of an IRS Form 8332, the exemption belongs to the parent with whom the child lived for more than 1/2 the year. This is true even in cases where the NCP (non-custodial parent) provides more financial support than the CP.
Let’s say you’re a CP who believes the NCP is claiming the exemption illegally. You have two basic choices; you can report the NCP to the IRS by calling the IRS Tip Line at 1-800-829-0433, or you can choose to do nothing. Judging from the experience of my clients, the IRS is not all that effective in matching up the tax returns of two parents claiming the same exemption. I’m sure it happens, but I know many cases where it doesn’t.
There are many cases where it makes more sense for the NCP to claim the exemption. As you can see on this chart on my web site, the exemption reaches its maximum value for Adjusted Gross Incomes of $40-70,000. Above and below that income figure, the exemption is worth less. So a CP to whom the exemption is worth less might agree to share it with the NCP using IRS Form 8332.
One last thought about exchanging the exemption. In my state of Alabama (and in many other states as well), the child support guidelines assume that the CP is keeping and using the exemption for the children. If the CP allows the NCP to use it, one would expect the NCP to provide some form of compensation for that value.
Which ever parent claims and receives the dependent deduction for the children should have
that amount added to their gross income for child support calculations. If there are two
children of the marriage and each parent claims one child as a dependent it of course
balances out. Any difference such as in the case of three children (one parent claiming 1
and 1 parent claiming 2) any difference in tax benefit for one parent or the other
should be added to the gross income of the parent benefitting the most OR, the court
order should show that the child dependent deductions
alternate between parents on an annual basis.
I am a guardian ad litem who works part time for H & R Block during tax season. The biggest reason we have for immediate rejection of a tax return that is e-filed when both parents claim the same child as a dependent. It may get missed on paper filed returns but it seems to be automatically caught when the returns are electronically filed.
Non-custodial parent lives in Indiana (where venue is) while custodial parent lives in Tennessee. I have been trying to find a way to be able to claim our three children (who have lived with me since 1994 year round) on taxes but since he is a cop in that jurisdiction and has the judge in his pocket and has been allowed to claim three exemptions and get a huge refund on children who never have resided with him, I cannot get a fair judgement allowing me to claim the exemption. The judge finds in his favor even though I present evidence to prove that I meet the federal guidelines and am employed full time. Who do I contact or how do I get this matter to federal court where a fair hearing can be sought? I want to go to a Tennessee court or Federal court since I cannot get a fair trial in Indiana. Is there a statute of limitations on federal tax return cases? Can I get a venue change and retroactive judgement for past years where I could not receive a refund because he already claimed them? Can not the federal government override a state judgement thus overruling the biased judges’ decision? I have looked into an appeals court but like I said, the venue being in Indiana poses high costs for travel to that state as well as high costs for lawyers. They see me as the enemy simply by being from another state and the presiding judge has influence on an appeals committee. Please help…DESPERATE IN TENNESSEE
I have two daughters and I am the NCP (30%). My California court documents clearly state that the NCP receives an exemption and the CP receives an exemption. Does the Federal government recognize this and except this when filing.
No. The IRS will require a Form 8332 signed by the other parent. If you offer the Form 8332 to the other parent and he or she refuses to sign it, talk to your attorney about filing for enforcement.
Me and my ex have been divorced for almost 7 year now, we have an agreed devorice and parenting plan. On the orignial parenting plan he gets the child tax credit. this was not something that I agreed to. Later it was changed so that I would get the child tax credit. He is now married with a child. he gets an credit on the amount of child support he pays to my two children because he has a child that lives with him. He also gets a credit for carring insurance, but at the same time does pay any extra for carring my two children on his family plan insurance. now he is taking me to court because the orignial divorce decree he got the tax credit and the way the amendment was worded he may can still clam my two children. The IRS will not give him the child tax credit because I have not filled out a form 8332. and his child support was not 1/2 of the support for my two children. The IRS said that the divorce court could not make the CP give up the right of claming dependans that live with you. That this is the reason for the 8332 form and the divorce decree holds no water. Is this true, can divorce court take the CP’s rights away by making you sign a 8332?
Both are right. Yes, the Service looks to which parent spends more than half the year with the child, and yes, the state court has the power to decree that one parent transfer the exemption to the other. And of course, once one parent signs and delivers Form 8332 to the other parent, the Service will allow the other parent to claim the exemption.
In this case the NCP makes more money than the CP and the Service states that the Parent that has the least amount of Taxable income must claim the children, also under IRS COD 152e that the parent paying childsuport
must pay at least 1/2 of the child care. Does this over ride the devorce decree.
In what case? I’m not aware of any provision that works the way you describe.
Can a divorce court judge in the State of Alabama order the CP to share alternate years of claiming the child with the NCP? IRS has advised that the State/Local decree cannot overrule Fed IRS rules and unless the CP voluntarily agrees to sign form 8332 for the NCP, the NCP cannot claim the child as a dependent at any time. Alternate years seems to be the ‘norm’ in Alabama. But who;s correct? IRS or Alabama Divorce court?
My perception doesn’t match yours; I see alternating years not as the norm but an exception. Take a look at https://divorceinfo.com/altaxexemptions.htm for more info.
My ex recently asked for and received a modification to the original divorce decree. He wanted to pay less child support and have the alimony and back child support dismissed…all of which he got. While he was there, he asked for the right to claim all three children as dependents on his taxes. I asked that I be able to claim them, but the judge signed off on every request on the paper, including him claiming the children as dependents. They have not lived with him for ONE DAY since he left 8 years ago. As a matter of fact, they are not even allowed to go to his apartment in another state because of his lifestyle. He has always had to visit them locally. I am getting married next month and my husband-to-be and I had planned our budget assuming we would be claiming the children. This is a huge blow to us. I have been researching and everything I read says that the CP is allowed to claim the children unless they agree to not and fill out a form for the IRS. No one, including my lawyer, can believe the judge’s ruling on this. My lawyer advised us to claim the children anyway because we have not agreed to this and there has been no form signed, or even mentioned. Actually, knowing my ex, he will just claim them without thinking to check on the particulars, so he won’t know a form is needed unless the IRS informs him. I found out 2 weeks ago in court, that he has been claiming them these past 3 years, as have I. This is so important to us as a family because we will have so much more taken out of my husbands check each month…in addition to the reduced child support…and the excusing of the past support. Please advise me…can we claim them? Does the judge’s ruling surpass the IRS? The IRS’s stance is that they give this deduction to parents who have children living with them…otherwise the person doesn’t qualify. This guy definitely doesn’t by their standard. Thanks for any help.
I think you’re making a mistake to claim the exemptions. Yes, if the IRS looks into this it will require a Form 8223, but you have a decree requiring you to allow Dad to claim the exemptions, and I believe you should obey it. I’m with you; I can’t think why a judge would decide Dad should have them, but that’s what the decree says. I believe your best choices are to follow it or appeal it, not to defy it.
I am the custodial and residential parent of my 2 daughters, and in the divorce decree it states that I claim one child and my ex wife claims the other child. Can I go back to court to ask for this to be ammended so I can claim both children? She only pays me 60 dollars a week for child support and is remarried now, I do make a significant amount more per year then she does.But the children are with me 90 percent of the time, and I feel it would benefit them more if I could claim them both, or is this something the court will say you agreed to it in the decree and it’s not going to be changed?
It depends on whether you are able to convince the court that there has been a material change in circumstances since the decree was signed that makes it fundamentally inappropriate to allow the old provision to change. What will help you is that courts naturally lean toward assigning the exemptions to the custodial parent. What will hurt you is that you may spend all the benefit of the exemption (or more) fighting about it.
I live in Arizona – I dont know if you’ll be able to help but here is my question – My divorce dcree states ” The fathers right to claim the exemption in any given year is conditioned upon paymnet by Father by December 31 of the total Court-ordered monthly chils support obligation for that calendar year and any Court ordered arrearage payments due during the calendar year for which the exemption is to be claime” – In 2006 my ex was in arrears on his child support $400- I claimed all 3 kids on my return, and recently came to find that he did as well. We went back to court in Oct 07 and the Judge awarded my ex a credit on his child support of $400 and now the Judge is saying I must re-refile? From what I know since the decree is stated as is, I dont have to refile my taxes, would I be correct? Also I contacted the IRS they said it all depends on how the decree is stated. Does the Judge out weigh the IRS in this situation , or should I refile but send the divorce decree along with a letter stating the situation and see what happens?
Thank you for any help you can give.
_cry
My wife has four children. Her divorce decree had her ex-husband getting 3 of the 4 exemptions. Her oldest child graduated from high school and is attending college. Upon graduation the child support stopped. While the father is helping with college his not paying support. Shouldn’t my wife now be able to claim her college age son as a dependant?
I was never married to NCP and he has filed our daughter without my permission. I have not signed Form 8333 and plus I love in a different state and our child lives with me. He owes over $5000 in back child support. Will his return come to me? He whole return came to me last year but he didn’t file our child.
Sorry for the misspelling errors
First, i think what you mean is Form 8332, not 8333. Second, you can’t control what Dad does and shouldn’t try. Just know that you are filing as you should. If the IRS raises a challenge, you can show the child is living with you.
I have been divorced for 9 years and the NCP of two children.In the divorce decree it states that I claim one child and my ex claims one child. I have been claiming one child on the last 9 tax returns. I just found out my ex claimed both of them on her tax return last year.(I claimed one.) Now she says that she is going to claim both children from now on, and that she talked to someone at the IRS which told her she was able to since the children live with her. And she was the CP. I pay 50% of their living expenses for child support. Is this true? or Can I claim one of the children? Since that is what Indiana Divorce Decree says?
When in doubt, obey the decree. With all due respect for “someone at the IRS,” they don’t know that the decree provides who claims the child, and you do. You do what you know you’re entitled to do, and let Mom take care of doing what she needs to do.
me and my girlfriend are not living togethere but we hade a son together october 5th of this year he has resided in my parents home longer this year then he has at her parents her parents stole his social sacurity card from her and wont give it back to her so i can can clam him on my taxes do i have the right to clam him on my taxes or is it first come first serve
First, please write in sentences with periods. There’s a reason we use them. I’m not sure I know what you’re asking but will do my best.
If you’re asking who gets to claim the exemption for your child, it’s the person or persons who provided more than half his support. And if no one provided more than half his support, it’s possible no one will be able to claim him.
Possession of the Social Security card is irrelevant. Go apply at Social Security on the grounds that it was stolen and get another card.
I apologize for not writing in complete sentences. My mother provided for him longer than anyone else has. Would she be the one that should be able to claim him? I am still providing for him, I pay for his formula, diaper, and clothes even though he does not live with me. His mother does not have a job and has no way to provide for him. What should I do if Her parents claim him before my mother or I have a chance to claim him? Thank you for your time and advice.
First, don’t worry too much about who else is claiming the exemption for your child. If you know you have the right to claim it, you’ll be ready if the IRS calls.
Because you’ve been careful not to respond to my statement about someone providing more than half the support for the child, I will assume than no one is doing so. In that case, you’ll want to read on the IRS web site about the Multiple Support Agreement and Form 2120.
I apologize once again and thank u for your help. I am the one providing for his hole life. I have payed for all his diapers and formula. Her parents refuse to pay anything . He is my son so that is not the problem. I have provided for him his hole life but no he is not living under my roof at this time but every dollar has come out of my wages for him. Once again thank you for the advice.
I am a father who have three children. I recently went to court to try and get the right to claim my income every other year, the judge agreed and ruled in my favor ( even though the children are staying with the mother 7 months of the year), the judge also expressed to the mothers not to file income tax, which they did. Now the irs is auditing me. What should i do?
Take the decree from the court and hope for the best. For future reference, you need to attach to your return a Form 8332 signed by Mom.
My ex-husband and I have been divorced for 3 years now. I am CP and we have 3 children and they are with me 87% and 13% with NCP. NCP pays about $600 a month for child support and also providing health insurance. I am now married. I am afraid the judge may give him rights to claiming the children on his income tax return because he is paying the maxium child support amount. Can this happen?
It’s possible, but in my state it would be unlikely. Remember that the child support guidelines in most states assume that the CP is keeping and using the exemptions.
I was order to pay my X girl-friend mother child-care my share of co-payment them I was taken back for more money as I also pay child-support how much can her mother keep getting the court to make me pay as they all live in the same house
I have been divorced from my husband for about 4 years now and he dose his taxes before I do every year, this year they kicked my tax return out what should I do we are just now going through a custodial fight and we have agreed that he will only have weekends. I have had our child all year except for a month out of the summer and a portion of September when I was going to allow her to stay with him until the battle was over. He brought her back two weeks later and that’s when I found out he filed for joint custody for the weekends. How do I get my tax return?
I currently have custody of all three of my children. My ex kids them every other weekend and four weeks in the summer. She pays $400 a month in child support. She is currently 2300.00 behind and $600 on medical bills. She is about to take me to court to ask to claim one of the children for tax exemption. Is this possible? She is only paying $4800.00 a year as it is.
sorry I meant she gets them every other weekend and four weeks in the summer.
In general, courts award the exemption for the children to the custodial parent. It takes something really unusual to get them to rule otherwise, and you haven’t yet described anything really unusual.
My husband and I just recently married 090107. In his divorce it stated that the person allowed to claim the 3 children was the CP. Inwhich up to that divorce time 08-21-07 my husband was the CP for 2 of the 3 children. After the divroce all 3 children moved in w/ his ex-wife who lives with a boyfriend, and she has never worked her entire life. My husband and I are trying to file/claim 2 of the children for the 8mths they lived w/ us. But either her or her boyfriend “somehow” has already filed, and claimed them on their taxes. What should we do?
thank you
if you believe you are entitled to the exemption, you should file it. It’s not your business to ensure the compliance of other taxpayers.
There is a lot of information regarding this at the IRS website (if your able to comprehend it). http://www.irs.gov look up publication 504. As far as me, who was able to take the dependent exemption was left silent in our divorce decree. I am the CP and the children live with me 90%, so it wasn’t hard to figure out. However, my ex is threatening to take me back to court (after 4 years of divorce) to change it. I don’t feel that any circumstances have changed that would warrant him getting that judgement in his favor, but like what was said in a earlier post ” any benefit by having that deduction, may very well be eaten up in a legal pissing match”. Well…not exactly those words 🙂
My husband and I have temporary custody of our son who is 15, his mother pawned him off on her cousin last July, without telling his father. We’ve been paying 600 hundread in support per month up until last November, and now have custody. The Judge signed the temporary order in Dec 2007 and it states that we can claim him for all tax purposes, but his mother said that she was claiming him because she had him for over half of the year approx 7 months. Even though I think our support obligation was larger. Should we or with the signed order claim him or not for 2008, weve never claimed him before even though there was no signed order on who could or couldn’t. They werent married and back then wasn’t a parenting plan, just stating who he resides with and amount of support.
Thanks
My X husband divorced in 1999. He has had the tax credit since that time. He makes 150K a year. I was paid and have been paid fair child support.
The problem is I was sick in 1995 and 1996 and had to cash out the 401K I had and pay tax penalties of course upon that early withdrawal.
Is there some way to amend a divorce decree to change that. I am CP of the children.
They lived with me those years and spent 101/2 months with me.
Or is it better and to everyone’s benefit given his high tax bracket to allow him to have the exemption and not try to change things?
Mary.
PS.
He has two other children as well by his previous spouse who stays home of that makes a difference.
Addendum to the above Mary post.
See #38.
If my ex claims our child on Federal taxes can I claim him on state taxes?
Yes, but only if your child lives with you and the judge hasn’t ordered otherwise.
My Name is Chuck and I am recently divorced. I have four children and in the divorce it was agreed we would both claim two kids. My ex filed her taxes first and claimed all four kids so now I have an enormous bill to pay the government. I dont understand how 4 kids health insurance and child support comes out of my paycheck but I am not able to claim them in my taxes.
I am currently remarried and live in CA – my exhusband lives in PA where all the court proceedings are held and the divorce/custody reside. We are currently having issues with the dependents to be claimed on our federal tax returns. At the time of the divorce decree nothing was ever discussed about my ex claiming any of the children on his returns. Two years after the divorce was finalized, my ex requested that he claim one of the 3 children on his tax returns. The judge granted him one of the dependents and the order was written under the child custody order – not the divorce decree. I never agreed to it and the divorce decree and custody order does not have my signature agreeing to him claiming a dependent. The children live with me 70% of the time and visit him about 30% and the state of PA for child support also has me at a full time minimum job when I do not currently work – just my present husband does. Every judgement on money issues to pay always comes to me and never my exhusband. Of course it is because my ex’s current wife used to work for the judge and still works for the county in the court system. A lot of unfair judgements have happened to me over the past 6 years. We tried for change of venue and the judge refuses to release it. The judge wrote this custody order for a dependent even after the fact that I had proof that the ex only pays a small fraction of their cost of living, do not live with him, and the state has me at a part time job when I don’t work for child support (a credit for my ex). The order written (changed 3 times already by the judge) does not state that I cannot claim the child for tax purposes – just that the ex husband can. The judge admitted in the hearing that he did not know if his order would hold up with the IRS and now after I have been recently reviewed along with my ex husband at the same time by the IRS, they made a decision in my favor and now he wants to hold me in contempt of court. Can a judge hold me in contempt when it was not written under the divorce decree (and 2 years after it was final) and also the order does not state that I cannot claim the child? I read that an order written by a judge has to be percise and state that I cannot claim the child. Also, how can a court force a parent to sign a 8332 form when it is their right to claim the dependent by the IRS and I do not agree with signing it? Can a judge change the order from the custody number to the divorce decree number without any problems or does he have to redo a whole new order? Thanks so much for any help in this situation!!!!
Ah, if I could refuse to obey a decree on the grounds that I disagreed with it, wouldn’t we have an interesting justice system? Dad wins, you lose. Your option is to change the decree. If you can’t do that, you’re stuck. I’m sorry.
Thanks so much for answering my question so quickly! So it doesn’t matter if a judge did an order under the custody decree instead of the divorce decree? The IRS law dept. told me that an order had to be done under the divorce decree and it had to have my signature on that divorce decree stating the father can claim the child and I cannot. So many loopholes, huh? So if the judge orders me to sign form 8332 I have to sign it? Wow…amazing how justice works! When I sign the form, is that the date the IRS goes from? Can it be back dated (the 8332 form) even after the IRS investigated and closed the previous years? As for an option to get the courts to change the decree…I think I have a better chance of it raining chocolate than that happening!!! Thanks again Lee!!!
In November of 2007 my husband and myself received a letter from the IRS saying that they could not allow the dependent exemption or child tax credit for my stepdaughter for the tax year 2006. They required us to send the divorce decree, the martial settlement agreement, proof that my husband was current on his child support for 2006, proof that the child was living with us in 2006 (I sent doctor bills and health insurance statement dated 2006) and the Form 8332 signed by my husbands e-wife (it was signed and dated in 2008 due to not knowing this form existed). After sending all of these things the IRS response is still that we are not allowed the exemption. The martial settlement agreement states that my husband is allowed to claim his daughter in even years. The marital settlement agreement is a legal document stated in the divorce decree. Both my husband and his ex-wife were not aware of the Form 8332 in 2006 or years before, they had just alway switched off every other year with no problem. When the IRS had asked for this form, my husband signed off for years 2005, 2007, 2009, and 2011 and his ex-wife signed it releasing the exemption for the years 2006, 2008, 2010, and 2012. The form was also sent in and was rejected stating that we did not attach the form 8332 to our return in 2006. Can we Amend our taxes and just sent the form with the amendment? Also if this goes to tax court, what holds up in court the Divorce Decree or the IRS wanting a form to be sent in on time? I don’t understand that human error can not be forgiven in this case. Also my husbands ex-wife swears she did not claim his daughter in 2006 (but she will not show us the papers), also she signed the form and agreed not to claim an exemption for 2006. can you help me, or direct me to someone who can.