There were some changes made to this law starting in 2009, but divorce agreements signed prior to 2009 may still qualify to be used to claim a child if they contain all of the required information.
For post 1984 and pre 2009 divorce agreements, the decree or agreement must state all 3 of the following:
The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
The custodial parent will not claim the child as a dependent for the year.
The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.
If your divorce decree contains all of the information as required above, then your ex husband can still use that document to claim the child in the years that were assigned to him. It would have nothing to do with the amount of support he provides or how often he sees the child.
However, if your agreement does not contain all of the information as required, then from this point on he would need a signed Form 8332 to claim the child, or a similar signed statement that contained the same information.
Thank you sue
Hello, sorry to reply again, but YES this is what I read and was hoping to a clearer understanding on that you really didn't convey with regards XXXXX XXXXX Form 8332.
My agreement is basis and it just says that the Father will claim the child in the odd years and the Mother in the even years. Nothing written out like above. There's not stipulations, just basic so I'm confused on this form. Because it's so basic, I am "assuming" that although it is post 2009 for our divorce, he will still have to get my signature on that form 8332 PLUS I have the right to revoke that if he doesn't meet the requirements to claim the child. Which he doesn't. I could really use that deduction this year to do my circumstances and I have to maintain the home for the child, so can you just tell me if the wording you provided for the 3 items above is HOW the decree was suppose to be stated otherwise I have to sign this new 8332 form for him in 09?
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.