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Custodial parent vs divorce decree for claiming dependent

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ginmn

Junior Member
What is the name of your state (only U.S. law)? MN

I am wondering about a fight 2 divorced people are having in regards to who gets to claim their college age son. Their divorce decree states that they split it - one taking the deduction 1 year and the other the next. However, the child always lived with the father and he claimed him. Now, this is the last year that either one of them can claim him. The wife decided that she would use her option claim the deduction as she has the divorce decree to back her up. She couldn't because the husband had already filed his taxes and claimed the deduction.

I looked up some tax law info and found one thing that said even though the divorce decree said to split it - the custodial parent has the right to claim the child. The wife did not pay the ex husband child support and has not contributed to the support fo the child in the 8 years since the divorce.

Should the husband wait until he hears something from the IRS or should he file an ammended return. He is not entirely certain that the wife is going to attempt to claim the deduction.
 


LdiJ

Senior Member
What is the name of your state (only U.S. law)? MN

I am wondering about a fight 2 divorced people are having in regards to who gets to claim their college age son. Their divorce decree states that they split it - one taking the deduction 1 year and the other the next. However, the child always lived with the father and he claimed him. Now, this is the last year that either one of them can claim him. The wife decided that she would use her option claim the deduction as she has the divorce decree to back her up. She couldn't because the husband had already filed his taxes and claimed the deduction.

I looked up some tax law info and found one thing that said even though the divorce decree said to split it - the custodial parent has the right to claim the child. The wife did not pay the ex husband child support and has not contributed to the support fo the child in the 8 years since the divorce.

Should the husband wait until he hears something from the IRS or should he file an ammended return. He is not entirely certain that the wife is going to attempt to claim the deduction.
What he has here is a contradiction between the tax code and the state court divorce decree.

If he was and still is the custodial parent of the child, then the IRS would back him up if there was a duplicate claim...unless their divorce decree would qualify as a substitute for form 8332. If it qualifies as a substitute for form 8332, then the IRS would NOT back him up.

However, he is in contempt of court for not facilitating mom claiming the child every other year since the divorce...and he could be hammered in state court for that. Of course, if mom was ordered to pay child support and did not, then she could be hammered for that too.

If 2008 would have been mom's year under the divorce decree, then he is at risk for 2008, 2006, 2004 and perhaps 2002.
 

tranquility

Senior Member
While the advice is correct, I've been warning similarly situated clients that, starting in the tax year 2009, even a complete decree will no longer be enough. The 8332 will be needed.
 
What he has here is a contradiction between the tax code and the state court divorce decree.

If he was and still is the custodial parent of the child, then the IRS would back him up if there was a duplicate claim...unless their divorce decree would qualify as a substitute for form 8332. If it qualifies as a substitute for form 8332, then the IRS would NOT back him up.

However, he is in contempt of court for not facilitating mom claiming the child every other year since the divorce...and he could be hammered in state court for that. Of course, if mom was ordered to pay child support and did not, then she could be hammered for that too.

If 2008 would have been mom's year under the divorce decree, then he is at risk for 2008, 2006, 2004 and perhaps 2002.
I'm confused. The divorce decree would have the child no longer subject to "custody" once they turn 18 in MN. So, if the child isn't subject to "custody", but chooses to live with one parent or the other, then how does it work with an 8332? And who claims, etc?
 

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