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My ex and I both claimed our child on taxes?

What to do if ex claimed child on taxes?

  • I live in NC and I divorced my ex in 2010 and we have a written court ordered custody agreement stating that we shall have joint custody of the minor child with an actual division of physical custody as ordered in temporary custody filed previously. Basically, we agreed on dates due to my ex being a firefighter and worked a funky schedule of 24 hours on duty and 48 hours off duty. Additionally, the agreement states that the plaintiff (me) shall claim the minor child on her annual tax returns for so long as she is able to do so, except that should the minor child reside with the defendant (him), then the defendant shall claim the minor child on his annual tax returns for so long as he is able to do so. Well, he has already filed his taxes for 2011 and he claimed her, but she doesn't reside with him. I spoke with my accountant that said I could file and claim her too, but it would red flag both our returns and they would audit us. I don't care if they audit us. I guess I need someone familiar with tax or civil law to help me out on this one. He is threatening to sue me for full custody also, which is crazy. I just need actual laws, legal advice, tax advice, anything to help me out. I've searched all over the IRS website and can't find anything. Thanks in advance.

  • Answer:

    The IRS will give the exemption to the parent with whom the child spent the greater number of nights in 2011. If that's you, the IRS will decide in your favor and disallow the exemption on your ex-husband's return. You know if she stayed longer with you than with him. If she stayed with you more than with him, file a paper return by mail claiming her, and the IRS will investigate, asking each of you to provide documentation about where the child lived. I think that in divorces granted before 2008, the custody agreement meant more for taxes but for divorces after 2008 the IRS just made it simpler and decided to give the exemption to the parent with whom the child lived with longer, which was simpler than wading through custody agreements.

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By IRS rules you did not split her 50/50. The IRS wants to know who had her for 183 nights of the year. In other words, who had her for just one more night than the other parent.

Lynne

The value of the court agreement is if both parties do not obey it they can be prosecuted for contempt.

Cathi K

The rules on court orders depend on when the order was issued. The rules have changed a couple times. With very recent orders, the order itself isn't honored by the IRS, the IRS gives the exemption to the custodial parent unless they sign form 8332 turning it over to the other parent. But if the order says the non-custodial parent gets the exemption and they refuse to sign an 8332 form, they can be charged with contempt of court. The custodial parent is the one with whom the child spends more nights - with physical custody, not the same as legal custody. But none of that really applies to your situation since you have both the court order and the IRS default on your side. Yes, file your return by mail claiming your child. The IRS will investigate, and award you the exemption.

Judy

I too tired. In your post did you ever actually say which parent had the greater physically custody? The IRS doesn't go by the court decree. If the non-custodial parent had the right to claim the exemption he/she HAS to attach a form 8332 to the tax return. The right to claim the child is incomplete without that form. The custodial parent continues to claim HOH (if eligible), child care and EIC. If you are the custodial parent, file by mail and attach a copy of the child's SSA card. The IRS will sort this out. If you had custody, don't be scared of an audit.

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