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Sandi Hargrove, SkyHawks
Sandi Hargrove, SkyHawks, Master Tax Advisor, Enrolled Agent
Category: Tax
Satisfied Customers: 1257
Experience:  I am a Master Tax Advisor and Enrolled Agent. I have 40 years experience. Trucking specialist.
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children exemptions

Customer Question

I am the noncustodial parent. I pay over $ 50,000.00 per year as child support for three (3) children. (ages 13, 11, 11). I have a written and executed agreement with my ex-spouse that grants me the right to claim the children as dependents on my tax return. If I cannot use the exemptions due to income (phase out) then my ex-spouse can use them. Agreement dated 1997 with aid of independent counsel for both parties. Question: Is there a new law or statue that supercedes my agreement? Can I still claim these 3 exemptions? Thank you.
Submitted: 11 years ago.
Category: Tax
Expert:  Tammy F. replied 11 years ago.

 Tax law states that the custodial parent is the one who gets to claim the children.  Usually in divorce proceedings, the parents will alternate years or one will get the deduction exclusively.


Your wife would have to waive her right to claim the exemption and provide you with form 8332 which would release her right to claim the children.  Many times, this form is provided during the divorce so that it will not be a hassle later on.  If you have this form, you are in the clear. 


If not, you can still file as normal, mail your return in and attach a copy of your divorce agreement with the section highlighted that indicates that you will claim the children.  If your wife does not contest, you will get the exemptions for the children.


Let me know if  you still have questions.

Expert:  Sandi Hargrove, SkyHawks replied 11 years ago.

 You should understand that IRS is governed by federal laws and state laws may not supercede federal law.


If the parents agree, IRS will allow the divorce decree as a basis for claiming your dependent children on your return.  If the parent who has physical custody more days than the other parent does not agree and wishes to claim the children they may do so even if there is an agreement in the divorce decree.  To protect the noncustodial parent's right to claim the exemption, Form 8332 is strongly recommended.

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