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Daniel Solutions
Daniel Solutions, Divorce Lawyer
Category: Family Law
Satisfied Customers: 9934
Experience:  Practicing Attorney for over 15 years
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My divorce was finalized in Feb of 2009. Decree says ex spouse

Customer Question

My divorce was finalized in Feb of 2009. Decree says ex spouse can claim 2 oldest children every year and I can claim 2 youngest. I understand new tax laws in effect mean I need to fill out an 8332 form in order to allow him to claim 2 children. He does not visit children as he is entitled to in the divorce decree, except a few hours a month, but he is on time with child support- I do provide way more than half of their support. Can I go ahead and claim all four children on my taxes. I am aware this is legal in the eyes of the IRS, but what would the divorce judge do if he brought this back to court?
Submitted: 6 years ago.
Category: Family Law
Expert:  Daniel Solutions replied 6 years ago.
Hello,
Thank you for allowing us to assist you with this problem. I am not fully aware of what prior steps you have taken.

No you can not claim all 4 children because the court order has divided the children. You can only claim the younger two children even if you support all 4 children. Sorry.
Customer: replied 6 years ago.

I apologize but I need clarification. While completing my taxes via Turbotax, I was asked if my decree was from 2009 or after. It is. It says that I can claim all of my children regardless of the decree. There is no specification that I must sign the 8332 form in my decree.

In particular, I am referring to this:

 

"The changes to the 2009 tax code are as follows:

1. The custodial parent, for 2009 & forward, is the one with whom the child resides the greater number of nights during the year, regardless of the divorce decree terms.

2. You must obtain IRS Form 8332 (Release of Claim to Exemption for Child of Divorce or Divorced Parents) to claim the exemption if you are the non-custodial parent. The divorce agreement or court order will not be used to substitute for IRS Form 8332.

3. The custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 & forward, even if the release was made prior to 2009.

The parent claiming a dependency exemption on the child/children is the only parent eligible for the following tax benefits:

  • Dependent Exemption Deduction
  • Child Tax Credit
  • Child and Dependent Care Credit
  • Education Credit or Education Expense Deductions
  • Earned Income Credit
  • Head of Household Filing Status

With all the new changes, all non-custodial parents who plan to take a dependency exemption should obtain IRS Form 8332 for 2009 & forward tax years. A divorce agreement or court order cannot be substituted."

Expert:  Daniel Solutions replied 6 years ago.
I understand the change you raised. Federal law will not change your state law divorce decree as it only changes the federal standard as to claiming children. It did not change your ability to only claim two children. If you do can all 4 you will be in contempt of your divorce order and though the state judge can NOT force the IRS to remove two of the children if you claim then, that state judge can force you to make the change or hold you in contempt.
Expert:  Daniel Solutions replied 6 years ago.
I understand the change you raised. Federal law will not change your state law divorce decree as it only changes the federal standard as to claiming children. It did not change your ability to only claim two children. If you do can all 4 you will be in contempt of your divorce order and though the state judge can NOT force the IRS to remove two of the children if you claim then, that state judge can force you to make the change or hold you in contempt.