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Lev
Lev, Tax Advisor
Category: Tax
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Experience:  Taxes, Immigration, Labor Relations
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I was divorced in 2007 and my divorce decree states that I,

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I was divorced in 2007 and my divorce decree states that I, the mother, get to claim the child on taxes every year. We have joint physical and legal custody and neither of us is designated as the custodial parent in our decree. If my ex claimed my child without having a form 8332 signed is this legal? Also, since my child is listed on all of her medical, dental, and school records as residing at my address will this be enough to establish if I am custodial per IRS rules? I have paid over 50% of her support, all of her medical/dental etc, childcare, and more. I would like to amend my 2012 taxes to get the credit but I want to know if this is possible. Thank you

Lev :

Hi and welcome to Just Answer!


The IRS will not follow the divorce degree in determination who is the custodial parent...


Under the IRS rules the custodial parent is the parent with whom the child lived for the greater part of the year. The other parent is the noncustodial parent.

Customer:

How is this determined if neither of us is designated as the custodial parent? We did not follow any schedule as far as what days we each had our child. How will custodial parent be determined then?

Lev :

We need to determine the number of nights the child lived with each parent - and the parent with whom the child lived for the greater part of the year will be the custodial parent.

Customer:

How is this proven if no one followed a schedule? So basically I have nothing that can back me up for the IRS if we can't determine number of days?

Lev :

In case of disagreement - you need to provide a proof that the child lived with you certain number of nights. There is no substitute of that proof. The IRS will take supporting documents from each parents and will determine who is the custodial parent. The number of nights the child lived with each parent is critical.


If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income.

Customer:

okay, thank you.

Customer:

One last thing...is the higher adjusted income based on my income alone versus his? or would my husband's income be included in that?

Lev :

Sorry if you expected differently. If you disagree with the determination made by the IRS - you may take your case into the Tax Court. But still you need to provide supporting documents for your statements.

Lev :

Adjusted Gross income will be determined separately for each parent - not including spouses. If you are filing a joint tax return - the AGI would be prorated.

Customer:

Okay, thank you I appreciate the help.

Lev :

Again - that would be only if the IRS determines that the child lived with each parent for an equal number of nights during the year. If the IRS determines numbers of nights were not equal - the AGI would not be considered.

Customer:

Okay, thanks. Since I have no proof of actual days, I guess it wouldn't be wise to amend. That's what I needed to know. Thank you

Lev :

You do not need to provide any proof with your tax return. The proof is only needed when the IRS specifically asks for supporting documents. However if both parents claim the same child - it would be very likely that each is asked to provide a proof of their eligibility.

Customer:

And that is what would happen because he claimed her without asking me. I didn't know I could do anything about it then I heard I could possibly amend. But I don't have any proof of what days I actually had her. THis is what you get for being nice after a divorce I guess! LOL oh well, lesson learned...I will document everything from now on! Thanks again

Lev :

Well... If he considers himself as the custodial parent - there is no need to get approval from another parent.
Sometimes the divorce decree addresses that question - and award either parent to claim a child or assigns alternate years to each parent or any other way. If that is the case - you both need to follow the divorce decree.

Lev :

If you will claim the child as you were the custodial parent - and the same child is claimed by another parent - most likely - the IRS will send a letter to each parent asking to provide supporting documents fro rights to claim the dependent. If you will not be able to provide any supporting documents - most likely - your claim will be disallowed. So - you need to be prepared to proof your claim.

Customer:

well all I have is the divorce decree that states I get to claim taxes every year. I also have supporting documentation that lists her residential address as my home. THis includes school, medical, dental, health insurance, and child care programs. His address has not been listed on any of these things ever. I just don't have proof of the exact days she was with me, even though I had her the majority of the year. He only took her on Tues, Wed and every other weekend. But this doesn't follow any official schedule that is in a court agreement, we unofficially followed that schedule because it was easier for him.

Lev :

If another parent doesn't claim the child - I see no issues for you to claim the child as a dependent for all benefits.
The only issue would be if another parent claims the same child.
If the other parent claims the child despite the divorce decree - that would be a violation of the divorce decree - and you may take him back to the court for damages.
For future - you may want to start keeping the record of nights the child spends in your home. If that record established the pattern - it may be used as a proof for previous periods. You may also re-establish the record, use affidavits of neighbors, relatives, etc. You may use school records as a proof as well. But we may not predict how your documents would be viewed by the IRS in case you are asked to proof your claim.
Please be aware that another party will be asked to proof as well.

Customer:

okay thanks. It was helpful. Again, it all seems unfair but I guess I shouldn't expect fair from the government! haha. Thanks again

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