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I have a question regarding the child tax credit among

divorced parents. Can you help...
I have a question regarding the child tax credit among divorced parents. Can you help me out with that?
JA: The expert will know how to help. Please tell me more, so we can help you best.
Customer: The divorce decree states that the children live with me full time and that she is ordered to pay child support. There was a period of about 4 years that the children lived with her while I worked out of town. During that time We had a verbal agreement that we would each claim one child, or that I would still claim both because she either didn't work or made very little. This was 7 or so years ago. She is now saying that she is going after me for IRS fraud because she should have claimed both of the children during that time. From what I understand, as long as the divorce decree states I have full custody and we had a verbal agreement she cannot go back on that correct?
JA: Is there anything else the expert should be aware of?
Customer: I don't think so, but I'm happy to answer any questions
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Answered in 19 minutes by:
8/1/2017
Tax.appeal.168
Tax.appeal.168, Tax Accountant
Category: Tax
Satisfied Customers: 3,859
Experience: 3+ decades of varied tax industry exp. Tax Biz owner
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Hello. Thank you for choosing this Q&A service for assistance. We appreciate your trust in us. My name is Angela. I will be assisting you.

Q: From what I understand, as long as the divorce decree states I have full custody and we had a verbal agreement she cannot go back on that correct?

A: This is correct. Since there was divorce decree in place stating that the children be in your custody full time (you as the custodial parent) and the two of you had a verbal agreement, she will likely not have a leg to stand on. If you did not complete a Form 8332, releasing dependency claim, and she does not meet all of the following qualifications, she was not entitled to claim the children during that time, even though they were in her custody. SEE BELOW:

Children of divorced or separated parents (or parents who live apart). A child will be treated as the qualifying child of his or her noncustodial parent if all four of the following statements are true.

REFERENCE SOURCE:

https://www.irs.gov/publications/p504/ar02.html#en_US_2016_publink1000175898

IRS Pub 504

-----------------------------------------------------------

Additional Info:

  1. The parents:

    1. Are divorced or legally separated under a decree of divorce or separate maintenance,

    2. Are separated under a written separation agreement, or

    3. Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

  2. The child received over half of his or her support for the year from the parents.

  3. The child is in the custody of one or both parents for more than half of the year.

Who Can Claim: Custodial versus Noncustodial Parents

It’s common for the custodial parent – the one the child spends more than half the year with – to claim the dependent. But the noncustodial parent may claim the dependent if he or she provided half of the child’s support.

The noncustodial parent may also claim the dependent if a divorce or separation decree or a written declaration from the custodial parent says the noncustodial parent can claim the dependent.

If there’s any doubt about who will claim the child, it’s best to communicate with the other parent before you both file. When both parents claim the child, only the first filed return will be accepted. Other than that, adding the child to your 1040.com return is just a matter of filling out the Dependent screen.

Special Rules

If no divorce or separation decree states that the noncustodial parent may claim the exemption or there is no written declaration from the custodial parent, tiebreaker rules are in effect.

  • The parent who the child spends the most time with may claim the dependent.
  • If the child spends equal time between both parents, then the parent with the highest adjusted gross income may claim the dependent.
  • If only one of the taxpayers is the child’s parent, that parent may claim the dependent.

REFERENCE SOURCE:

https://www.1040.com/tax-guide/taxes-for-families/claiming-child-when-divorced/

Let me know if I can be of further assistance to you regarding this matter. If I have answered your question(s), I ask that you please take the time to scroll to the top of the page and select 3 or more stars to positively rate my response so that I can receive credit for assisting you. Thank you in advance.

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Customer reply replied 3 months ago
Thank you for getting back to me so promptly! I just want to double check on the qualification .. you mentioned she could not claim them unless she qualified. Qualification #1 states the parent whom the child spent the most time with could claim. During those 4 years it would have been her while I worked out of town, however we had a verbal agreement that although they were living with her we would each claim one or I would still claim both. Because they lived with her but we had a verbal agreement for those few years 7+ years ago, and our decree still stated i had primary custody she cannot claim tax fraud? Your answer definitely made sense but the qualifications threw me off a bit and seemed to be a little contradicting.

Hello again.

I wouldn't worry about that qualification so much because as indicated, she has to meet all 4 qualifications. I take it during the 4 years that the children were in her custody, you provided the majority of the support, which means that she did not provide more than half of their support. Is that correct. If she did not provide more than half of their support...she DOES NOT meet all 4 qualifications. On the other hand, if she did provide more than half their support during that time, she has the right to claim them even though there is a divorce decree in place.

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Customer reply replied 3 months ago
I provided majority support as she did not work very much. There was no documentation of support, but that could be easily seen by her income vs. mine. Thank you very much for your clarification and help in this matter. Have a wonderful day.

Hello again. You are very welcome. As for the no documentation showing that you provided the majority of support, if the IRS wants to, they can play hard ball relating to that. However, as she did not have much income, when all is said and done, the IRS will see that it was likely that she did not provide more than half their support. Please remember to scroll to the top of the page and select 3 or more stars to positively rate my response. You have a wonderful day as well.

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