Hello again sue,
Part of the problem in me or any other tax person giving you guidance on this is the fact that this is a new provision for 2009. So we really have no feedback yet as to what the IRS is accepting or not accepting on pre 2009 divorce decrees.
However, based on my interpretation of this new law, most pre 2009 decrees are not going to contain the required information, simply based on the fact that the IRS requires that there be a specific statement which says that the custodial parent agrees not to claim the child in the years awarded to the noncustodial parent. If such a statement is not in your decree, I believe that in itself makes the decree invalid for purposes of the non custodial parent claiming the child. In that case, he would need a signed form 8332 from you to continue claiming the child.
In all likelihood it may be that your former spouse still plans to claim the child, and there is nothing you can do of course to prevent him from doing that. However, based on the new law, I would suggest that you go ahead and file your return and claim the child. If your formers spouse files before you do, then if you try to file electronically, your return would be rejected, because the child's SS number will already be in the system. In that case what you will need to do is mail your return and you would attach a statement explaining the circumstances. In that statement you should tell the IRS that your divorce decree is no longer valid in respect to the child dependency claim due to the required information not being part of that document. Include a copy of the applicable pages from your decree.
After the IRS receives your return, they would then review the documentation and make a decision as to whether or not the decree contained the required information needed to allow your former spouse to claim the child. If the IRS agrees that the document does not contain the required information, they will disallow your former spouse's deduction and send him a notice to pay any additional taxes he owes along with interest and penalties.
Obviously this entire process will take longer than the normal time it usually takes to process a return. But this is the process you would need to follow. And hopefully once you establish the fact that your former spouse can no longer use this decree as his right to claim the child, then from here on out in future years he will likely not attempt to claim the child again and risk more penalties and interest being charged back to him.
Thank you sue