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Jacy
Jacy, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 568
Experience:  Nine years individual income tax preparation and consulting
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My husband has been divorced for 12 years. All this time,

Customer Question

My husband has been divorced for 12 years. All this time, his ex-wife was claiming the 2 childen as dependents--she is the custodial parent. However, last year he had to obtain a copy of the divorce decree, and there it was in black and white, "Father may claim children as dependents," He should have known this, but he didn't. He still has a few years to go while they're in school. Can he start claiming them now, without any reprocussions from the IRS?
Submitted: 3 years ago.
Category: Tax
Expert:  Jacy replied 3 years ago.

Jacy :

Hello,

Jacy :

Does the divorce decree state that he "may" claim the children or does it specifically state that he gets to claim them and Mother does not.

Jacy :

per IRS pub. 17:

Jacy :
Post-1984 and pre-2009 divorce decree or separation agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.


  1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.




  2. The custodial parent will not claim the child as a dependent for the year.




  3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.




 


The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.



  • The cover page (write the other parent's social security number on this page).




  • The pages that include all of the information identified in items (1) through (3) above.




  • The signature page with the other parent's signature and the date of the agreement.





 


Jacy :

If the divorce decree does not include all of the above, then to claim the dependents your husband will need to get the signed for 8332 from his ex-wife (this form releases the claim for the dependents) and attach it to your tax return.

Jacy :

Hope this answers your question. Please Reply if you need more information or assistance.

Customer :

Well. firstly, it specifically states father "may claim children as dependents"; it is non-conditional (although, he is paying child support), and does not state a time frame in which this could happen. It does not state mother cannot claim them, and that's where there may be a problem with the mother's modus operandi. We had temporary custody of the childen for one year while mother was incarcerated. Naturally, we claimed them as dependents, and after explaining this to mother so that she won't, she said, "Well, I'm gonna do it anyway, see what happens." That's what we're dealing with.

Expert:  Jacy replied 3 years ago.
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Expert:  Jacy replied 3 years ago.

Hello,

 

Since the divorce decree is not specific regarding the year or years each parent can claim the kids, your husband will have to get the 8332 signed by his ex-wife. If he doesn't get the signature and both parties claim the dependents, the IRS will side with the custodial parent.

 

Sorry for the bad news. Let me know if you need anything else.

 

Jacy

Customer: replied 3 years ago.
I just looked over the wording of of the divorce decree. It says " The father SHALL be allowed to claim the children as dependents." Does that change things? I'm thinking the reason the court threw him this bone 13 years ago, was because he was required to pay a fair amount of child support (which he has been doing all these years).
Expert:  Jacy replied 3 years ago.

Hi,

 

The issue will still need to be decided between your husband and his ex. If he tries to claim the children against her wishes, and she claims them also, then the IRS will get involved and make the decision. This could be a lengthy process. In the end he may win, but it may not be worth the red tape. I am not a lawyer, but if she is violating the divorce decree, there may be some legal recourse. This is not an easy choice. Which is worse, the court system or the legal system?

 

Sorry I can't be of more help.

 

Best wishes,

 

Jacy

Jacy, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 568
Experience: Nine years individual income tax preparation and consulting
Jacy and other Tax Specialists are ready to help you
Customer: replied 3 years ago.

Jacy,

OK, you've been great, and I think I have enough info to make a decision. My stepdaughter, with whom I'm very close,is doing her mother's taxes. I will convince her not to put her and her brother down as dependents. She knows about what it says in the divorce decree and is a very bright girl (wants to be a lawyer), and wants to do what's right. Plus, the fact that she's Daddys little girl doesn't hurt, either!

 

Thanks. Jacy!

 

Expert:  Jacy replied 3 years ago.

Hello,

 

Hope her Mother will sign it that way.

 

A little further info: If your husband gets his tax returned e-filed first, the ex won't be able to e-file with the same dependents. (The IRS keeps track of this.) She would have to mail a paper return to claim them.

 

Good luck to you,

 

 

Jacy

 

Customer: replied 3 years ago.

Well, I'm not worried about her mother signing it, cause Carly (my stepdaughter) uses turbotax, as do I, and e-files. Her mother has Carly do it cause she doesn't know how to handle these matters electronically. I will mention to Carly that if we both claim her and her brother, her mother will have to mail her return in, which won't fly..

 

Yeah, knowledge is power--you rock, Jacy!

Expert:  Jacy replied 3 years ago.

Thanks! I hope it works out. All you have to do is get your return done first and the ex will have to choose between e-filing without the kids as dependents or mailing it in with the kids as dependents. I she chooses the latter, the IRS will be investigating all of you to see who has the rights to the dependents. Hope she won't choose to risk it. It will be easier on everyone.

 

Take care,

 

Jacy

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