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Claiming child living with custodial parent

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wawa418

Junior Member
What is the name of your state IN

My husband and his ex-wife's decree states that they each claim their son every other year on their taxes. This year is our turn to claim him.

We received a call from her earlier this week asking if she could claim him this year and he said no, since we have been giving her extra monies and paying for items for him for school, etc. He recently started a new job and his old job's check paid the child support and his new job's check has paid the child support on the same week. Needless to say we are ahead again.

She has told us that if we even fall a week behind (which isn't even the case), that she has all rights to claim him.

Our question is: Is she right? I mean we aren't even behind and are in fact ahead and it is in the divorce decree (claiming the taxes). Is she full of it as usual?
 


haiku

Senior Member
the court order will have to state you cannot be in arrears for her to be correct. If it does not, your husband would continue to be eligible despite being in arrears.
 

LdiJ

Senior Member
What is the name of your state IN

My husband and his ex-wife's decree states that they each claim their son every other year on their taxes. This year is our turn to claim him.

We received a call from her earlier this week asking if she could claim him this year and he said no, since we have been giving her extra monies and paying for items for him for school, etc. He recently started a new job and his old job's check paid the child support and his new job's check has paid the child support on the same week. Needless to say we are ahead again.

She has told us that if we even fall a week behind (which isn't even the case), that she has all rights to claim him.

Our question is: Is she right? I mean we aren't even behind and are in fact ahead and it is in the divorce decree (claiming the taxes). Is she full of it as usual?
The standard guidelines for child support in IN call for the non custodial parent to not get the exemption if they are behind at all in child support. Therefore its very likely that that verbage is in your husband's child support orders. Get them out and look.

Also, you need to be aware of a problem with the IRS. The federal tax code gives the exemption to the custodial parent only, unless the custodial parent signs a form 8332 and gives it to the non-custodial parent, or unless the court orders qualify as a substitute for a form 8332.

If your IN orders do contain the verbage that he doesn't get the exemption if he is behind in child support, then his orders cannot qualify as a substitute for form 8332. The basic requirements for the orders to qualify is that 1) they must contain the signature of the CP, 2) they cannot be conditional, 3) they must state specifically the years that the NCP gets to claim the children and they must state specifically that the CP is not to claim the children for those years.

Its fairly rare for the IRS to question a dependency exemption for a parent, unless both parents claim the child. However, it has been happening more lately. However, if both parents claim the child, then the IRS is absolutely going to be expecting your husband to have the signed form 8332, or a qualifying substitute. Therefore if there is a duplicate claim, the IRS is going to find in favor of mom if your husband doesn't have the form.

In that instance, your husband's solution would be to file for contempt against mom, and let the state court judge handle mom.
 

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