Who claims the child?

[Twlm1640]

What is the name of your state? WA

Our divorce decree indicates that my ex-husband and I must switch who claims our son each year for tax purposes. But the thing is, my son lives with me 7 days a week, my ex only spends about 3-4 hrs in a week with our son. Does my ex really have the right to claim our son as dependent even if our son doesn’t live with him, because that’s what the divorce decree says?

 

[Ohiogal]

What is the name of your state? WA

Our divorce decree indicates that my ex-husband and I must switch who claims our son each year for tax purposes. But the thing is, my son lives with me 7 days a week, my ex only spends about 3-4 hrs in a week with our son. Does my ex really have the right to claim our son as dependent even if our son doesn’t live with him, because that’s what the divorce decree says?

Per tax law, no. HOWEVER, you can be found in contempt so yes, he does. And you can be forced to sign Form 8332 granting him that right.

 

[FlyingRon]

The IRS considers the deduction to belong to the parent whom the child primarily lives with (most nights of the year). However, they do allow the benefit to be assigned to the other spouse via IRS Form 8332. Of course, these days there are less and less "deductions" available, though the child tax credit may still be a valuable commodity.

The issue isn't the IRS. If a court tells you that you must do something, you must do it or be in contempt.

 

[Just Blue]

What is the name of your state? WA

Our divorce decree indicates that my ex-husband and I must switch who claims our son each year for tax purposes. But the thing is, my son lives with me 7 days a week, my ex only spends about 3-4 hrs in a week with our son. Does my ex really have the right to claim our son as dependent even if our son doesn’t live with him, because that’s what the divorce decree says?

What was the custody order per the decree? Is dad taking less time than he was awarded?

 

[adjusterjack]

Does my ex really have the right to claim our son as dependent even if our son doesn’t live with him, because that’s what the divorce decree says?

Yep, because that's what the divorce decree says. Divorce decrees are enforceable. If you want that changed you'll have to go back to court to get it changed. And if your ex pays child support he should be entitled to the deduction anyway.

 

[Taxing Matters]

What is the name of your state? WA

Our divorce decree indicates that my ex-husband and I must switch who claims our son each year for tax purposes.

Then until you get that order changed that's the way it has to go. Under federal tax law, as others have explained, by default the custodial parent (CP) is the one entitled to the dependent exemption (and the other benefits that are associated with a dependent). The custodial parent is the parent with whom the child lived (spent the most nights) during the year. However, the law also allows the CP to waive the exemption and grant it to the noncustodial parent (NCP) instead. For the waiver to be effective it must be in writing containing the information that the IRS requires and must be signed by the CP. IRS Form 8332 may be used for the waiver, though other documents will work too as longs as they meet the requirements. The NCP then attaches that waiver to his/her return.

A court order does not itself meet the requirements for the waiver. So your ex needs to get that Form 8332 (or similar document) signed by you to claim the exemption. A well written order will explicitly require you to cooperate and provide that waiver to him for the years he's entitled to the exemption. Unfortunately I've seen a lot of orders not well written because the family law attorneys representing the parents are not tax experts and don't consult tax attorneys for help with the language for the proposed orders. Nevertheless, even if your order doesn't specifically require that, the fact that the order says he gets the exemption requires you to do your part to allow that to happen. If you don't do that, the ex can go back to court to enforce the order. If the order does not explicitly say you need to do the Form 8332 then the result may be that he's got to do it in two steps: first get the court to make an express order that you provide the Form 8332 and then if you fail to do that, the court may hold you in contempt. But whether the ex can go directly for contempt or must do it in two steps, he will be able to get the order enforced and might get you hit for his attorney's fees for having to go to court to make you do it, too.

But the thing is, my son lives with me 7 days a week, my ex only spends about 3-4 hrs in a week with our son. Does my ex really have the right to claim our son as dependent even if our son doesn’t live with him, because that’s what the divorce decree says?

It's not just about where the kid lives. These orders allowing the NCP to claim the exemption are usually given in recognition of the support that the NCP is ordered to pay. Your ex is ordered to pay child support, isn't he? If so, is he making those payments? If the answer is no then you can seek to enforce the support order by getting garnishment of his wages, tax refunds, etc and might be able to get the court to change the order on the tax exemption, too.

 

[LdiJ]

What is the name of your state? WA

Our divorce decree indicates that my ex-husband and I must switch who claims our son each year for tax purposes. But the thing is, my son lives with me 7 days a week, my ex only spends about 3-4 hrs in a week with our son. Does my ex really have the right to claim our son as dependent even if our son doesn’t live with him, because that’s what the divorce decree says?

Ok, here is the deal. As far as the IRS is concerned, unless you signed form 8332 to give your ex the right to claim the child, you are the only person allowed to claim the child, because you are the custodial parent under the IRS's definition of custodial parent.

However, you have a divorce decree, signed by a judge, that states that he gets to claim the child every other year. Therefore if you don't allow him to claim the child (by giving him form 8332 for that year), then he can take you to court for contempt, and the judge could order you to pay your ex whatever refund he would have received for claiming the child, or any other number of penalties for disobeying the divorce decree.

There is a third alternative. Non-custodial parents (under the IRS's definition of Non-custodial) are never allowed to claim Head of Household or Earned Income Credits or Daycare credits. The IRS does allow, in the case of divorced or separated parents, for the custodial parent to claim the child for head of house purposes, and therefore getting EIC and daycare credits, even if the non-custodial parent is claiming the child as a dependent and claiming the child tax credit. It has to be carefully done so that you don't make an error and accidentally claim the child for everything, but it can be done.

 

[LdiJ]

I just want to say, that before I posted the above, I very carefully checked to see if anyone else had replied so that I wouldn't duplicate a reply. There was absolutely nothing showing. Then, as soon as I posted, I saw the rest of the replies. This has happened to me before as well.

 

[adjusterjack]

I just want to say, that before I posted the above, I very carefully checked to see if anyone else had replied so that I wouldn't duplicate a reply. There was absolutely nothing showing. Then, as soon as I posted, I saw the rest of the replies. This has happened to me before as well.

I can't count the number of times that's happened to me.

 

[Twlm1640]

What was the custody order per the decree? Is dad taking less time than he was awarded?

I would say yes.

 

[Twlm1640]

So form 8332 is really necessary? My lawyer never mentioned to me about that part.
What if we just follow the decree, we would claim alternately, without signing the form 8332, will that work? Or we both will be in trouble?

 

[Just Blue]

I would say yes.

What was his stated custody time per the decree?

 

[Taxing Matters]

I just want to say, that before I posted the above, I very carefully checked to see if anyone else had replied so that I wouldn't duplicate a reply. There was absolutely nothing showing. Then, as soon as I posted, I saw the rest of the replies. This has happened to me before as well.

I've had that happen, too. So don't sweat it. I never thought some duplication of responses here was such an evil thing anyway.

 

[Taxing Matters]

So form 8332 is really necessary? My lawyer never mentioned to me about that part.
What if we just follow the decree, we would claim alternately, without signing the form 8332, will that work? Or we both will be in trouble?

If you do that the IRS may not catch that he didn't attach the Form 8332 for the years he took the exemption. But it is required and he faces the possibility of losing the exemption if the IRS reviews his return. The form doesn't take long to do, and complying with the rule will help both of you in meeting what the court order says.

 

[Twlm1640]

What was his stated custody time per the decree?

2x a week, depending on his days off
If it’s school day: after school till 8pm
It it’s non-school day: whole day till 9pm