taxes with joint custody

[jenaw3]

What is the name of your state? New Jersey


I was never married to my daughter’s father. I have always been the one to claim her on my taxes. He didn’t start to pay child support until my daughter was 3 ½ years old. She is now 5.
We do have Joint Custody and there is a child support order through the court, which he is always behind in paying and never consistent with paying.
The Day Care expenses I pay are not and have not been included in the Child Support order because when the order was put into place I was laid off and didn’t have any daycare expenses which was 3 ½ years ago.

My question is can her father just go claim my daughter on his taxes. This was something that was never worked out in court. I told him not to claim her because I am going to. I agreed to go to court about this to discuss it for next year. He did get his W2 forms already and I haven’t gotten mine so obviously he’d be able to do his taxes first. How can he claim the Daycare Expenses when he doesn’t pay for them. I am the one that handles most of her bills.

Please help me with any advice.

[abezon]

Only the custodial parent may claim the child care expenses, regardless of who pays them.

When parents were never married, only the parent who paid more than half of the child's support may claim the child. Determine how much support you paid by comparing how much you spent on housing & food (divided by the number of occupants), plus any individual expenses like insurance, clothes, gifts, school supplies day care, etc. If you paid more than he did, he cannot legally claim the child.

It does not matter to whom the court "awards" the exemption. Only the parent who paid over half the child's support may claim the child when the parents were never married. Courts can award the exemption when the parents are divorced or separated.

Originally posted by abezon

It does not matter to whom the court "awards" the exemption. Only the parent who paid over half the child's support may claim the child when the parents were never married. Courts can award the exemption when the parents are divorced or separated.

Even then, the IRS needs form 8332 to give a parent paying less than half the deduction, the court order is not sufficient.

[abezon]

That's incorrect. The IRS will accept a signed 8332 OR a copy of the divorce decree signed by both parents (not just by their lawyers or by the judge).

Originally posted by abezon
That's incorrect. The IRS will accept a signed 8332 OR a copy of the divorce decree signed by both parents (not just by their lawyers or by the judge).

Regarding the tax claim on the return, I know from experince that the court order is (or at least was) not sufficient. A form 8332 (Release of Claim to Excemption for Child of Divorced or Separated Parents) must be signed giving up the right to claim the child. Your former spouse can take you to court to try and force you to sign such a form, but without the form, as far as the IRS is concerned, the person with custody and providing more than half the support can claim the children on their own return. You might have to duke it out with the IRS sending you both a letter saying both claimed a child, but you will probably prevail if you haven't signed the 8332 for the year in question or giving it up for all years. See Miller v. Commissioner of Internal Revenue filed 3/24/00 and I.R.C. Section 1.152 and section 1.152-4T (Temporary Income Tax Regulations)

[abezon]

And I know from experience that the IRS has accepted signed custody decrees on numerous occasions. However, the decree must meet all the requirements of an 8332 -- signed by the custodial parent and specifying the years the NC parent may claim the child.

Miller, upon which you rely, was a case in which the decree was signed by the judge but not by the custodial parent. If the award of the exemption is conditional (usually on paying support), 8332 must be used. If the custodial parent refuses to sign the 8332, the NC parent can take the other to court & the court will order the custodial parent to sign the 8332 or face contempt penalties. It will usually also order the custodial parent to pay costs + attorney fees for being unreasonable.

I agree with all that abeson wrote, that is what the Miller case states. So the court document must include all fields from the form 8332 to be deemed a substitute. For example, the original court order being relying upon as a substitute form 8332 needs to include the social security numbers which these orders often do not include.