Use Proper IRS Form to Ensure Your Divorce Agreement is Followed
When divorcing parents are awarded joint custody of their children, the divorce order should dictate which parent can claim their children as dependents on annual income tax filings. Oftentimes this is done by either by alternating years that each parent claims the child(ren) or, if the couple has an even number of children, a “he takes one, she takes one” approach. The goal of the judge, and hopefully of the parties, is to come to a fair and equitable settlement.
However, particularly in a contested matter, the parties don’t always share this goal with the judge, and sometimes one or both will disregard elements of the final order. And since the IRS is not a party to the agreement, it will not get involved in enforcing it.
If your ex-spouse does not follow the court’s order and claims your children as dependents when he or she should not, and files before you, you have two choices but both involve time and at least one involves money.
- You can go back to court seeking an order for the offending ex-spouse to reimburse you for the amount of tax credit you should have received.
- You can file your return listing the same child or children as dependents, but the IRS will challenge you and, despite the court order, you will have the burden of convincing the IRS that you are the rightful claimant.
In the second option, showing the IRS the court order isn’t enough. Winning this argument involves proving that the child or children involved lived with you for more than half the year and you provided more than half of the support for those children during the year – another time-consuming and possibly costly burden. However, if you only provided support but the child or children involved did not live with you as defined by IRS Publication 501, you will lose the exemption despite the court order.
This scenario can be avoided entirely by the completion by both parties of IRS Form 8332, in which a parent waives the right to claim a child dependent, during the divorce process.
For example, if a divorcing couple has four children, it may be determined that the father will claim the first and third children and the mother will claim the second and fourth as dependents on their separate returns. The father would complete Form 8332 waiving his right to claim the second and fourth child, and the mother would complete the form to waive her right to claim the first and third child. A form must be completed for each child.
For divorcing couples who agree to an alternating year claim arrangement, Form 8332 also can be used by specifying the years which each parent is waiving the claim. Separate forms must be completed by each parent waiving claiming rights, and for each child subject to the arrangement.
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Categories: Family Law - Divorce - Custody +, Financial Planning
If the NCP did not provide half of the support(is behind on support payments) and the child did not live with him at all,the divorce decree states that NCP is to claim the child but the CP claims the child without NCP knowledge what can be done to the CP for doing this?
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Mel, there are several things that can be done. (1) If the NCP isn't paying the ordered support, the CP can go into court and have the NCP held in contempt. (2) If the CP claims the child when the order indicates the NCP should, the CP could be ordered to reimburse the NCP if the NCP takes the CP to court. (3) The CP can go into court and try to have the order modified, and seek an order demanding payment of the arrearage.
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My daughter is in college and is turning 21 this Sept 2009. My ex and I got divorced in 1994. The decree states specifically that this daughter is to be my tax dependant, as he had my son always, and we alternated my oldest daughter. well, after all of these years, he states he is going to claim her as his dependant this year regardless of how I feel or what the decree states and "let the IRS figure it out"! He feels that b/c he has helped her with money while away at college that he is entitled to claim her regardless of what I have contributed. This would be the last year for me to claim her, and he has no other claims b/c the other kids are older now. It's never been an issue before so I never kept strict records of the money I've spent on her, but now that this has come up, I don't know what to do. I don't want a messy involvement with the IRS either! She lives with me when she's home from school. What should I do?
Does the divorce decree trump anything, especially after all of these years?
Thank you for any insight. Theresa
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Theresa, Sorry to hear about your dilemma. This is not really the appropriate forum for dispensing legal advice on an individual situation. However the simplest answer may be to file first, and let him battle it out with the IRS. As noted in the original post, the IRS is not concerned with the order from the court and the appeals process on a situation such as this can be lengthy and difficult.
While it's been more than a decade since your divorce, you might also want to consult with your divorce lawyer, or another local attorney. If he does file ahead of you and claims your daughter, there may be recovery available through the courts for violating the original order.
Good luck and we hope our post has given you some insight.
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