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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 35309
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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I have divorce papers stating we can claim one of the two children

Resolved Question:

I have divorce papers stating we can claim one of the two children from the marriage; however my ex-wife continues to claim that child and my return is reject due to the SS# XXXXX used. Is there anything I can do since we have a current court order?
Submitted: 7 years ago.
Category: Family Law
Expert:  LawTalk replied 7 years ago.
Good morning,

There are special rules for children of divorced or separated parents when it comes to who is entitled to the dependant exemption when filing taxes.

Generally, the custodial parent, the one who has custody for the greater part of the year, is entitled to the deduction. However, there are exceptions to this rule. A typical exception occurs when, in a divorce settlement, there is an agreement as to which parent will get the exemption. Prior to 1985 the IRS did not require any special paperwork in relation to a parent claiming the exemption under the divorce decree.

At present, the IRS requires that you attach to your tax return IRS Form 8332, or a statement conforming with the substance of Form 8332, as proof that you are entitles to the exemption. Here is a link to the form for your use: http://www.irs.gov/pub/irs-pdf/f8332.pdf

The declaration releasing the exemption may be for a single year or for a specified number of years, either consecutive or alternate, or for all future years. If the release is for more than one year, the original signed release must be attached to the first years tax return and a copy attached to future years returns.

If the parent who is responsible for signing the exemption release refuses to do so, and/or files for the exemption themselves, it will be necessary for the aggrieved parent to file a motion with the court which granted the exemption for an Order compelling the other parent to sign the release. If you are forced to seek court intervention in this situation, you should also consider asking the court to find the other parent in contempt; you may also ask the court for legal fees in connection with your need to file the motion.


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Best regards,

Doug


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