Ex claimed kids aganist divorce agreement..now what?

[AZ-Tax]

My clients ex claimed 2 of my clients kids which is aganist the divorce decree. My client did NOT sign a form 8332 releasing those 2 kids.

Does my client file a 2008 paper return and include a copy of the divorce decree?

[David1980]

If your client is the custodial parent, just file the tax return (on paper) like a normal tax return. The IRS computer will figure out two claimed the same kids and if necessary request documentation to verify who can claim them.

[erchess]

I would only add

that the IRS doesn't care what the divorce court says. The IRS has its own rules to determine who wins if two taxpayers claim the same child. It comes down to who the kids spent the most time with, counted out to an exact number of nights if necessary.

If your client is a noncustodial parent who the courts said could claim the child perhaps because of paying money, then your client's redress will have to come from the court.

I stand corrected - see below post by Nashville.

[Nashville]

Not True

IRS does in fact care what the divorce decree says. In fact, in their publications, such a taxpayer is instructed to attach a copy to their return in lieu of an 8332.

IRS can, however, overrule and does not have to abide by a decree in state court. One member of our board told us he had a client where the IRS disallowed the divorce decree simply because the social security #s weren't disclosed on same.

Another tactic often used: in cases where the non-custodial parent is awarded the deduction, the IRS will pry into whether that parent is behind on child support, and if so, will disregard the divorce decree and everything in it. A non-supportive parent is typically the kind that races his spouse down to a storefront tax shop and electronically "beats" his spouse to the punch in claiming the kid, thus electronically "fencing off" the child against future claimants.

There is another misconception - not in fact but in effect de facto. The presumption is that the IRS will note two parents have claimed the same child and will sort through the facts and ultimately determine based on the facts and circumstances surrounding the case. The simple truth is that they have MILLIONS of such cases and they are doing very little about it, if anything. I have a couple clients (women) who are faced with this every year and I am forced to file a paper return. Every summer they get a letter telling them that both parents have claimed the same child. But nothing ever happens, and the next year their ex-husbands run down to HRB/JH and do the same thing. Been going on 4-5 years.

[AuditorTurnedGood]

still waiting

on a notice from 2007's season when both ex-spouses claimed the kid, one who actually should, by all measures, and one who just wanted the increased Stimulus payment. Don;t think it's coming.

ATG

[Jesse]

IRS does in fact care what the divorce decree says. In fact, in their publications, such a taxpayer is instructed to attach a copy to their return in lieu of an 8332.

IRS can, however, overrule and does not have to abide by a decree in state court. One member of our board told us he had a client where the IRS disallowed the divorce decree simply because the social security #s weren't disclosed on same.

This is true but from my understanding the divorce decree must contain the exact same information as the Form 8332 and without any contingencies such as "...if current on child support payments."

Another tactic often used: in cases where the non-custodial parent is awarded the deduction, the IRS will pry into whether that parent is behind on child support, and if so, will disregard the divorce decree and everything in it. A non-supportive parent is typically the kind that races his spouse down to a storefront tax shop and electronically "beats" his spouse to the punch in claiming the kid, thus electronically "fencing off" the child against future claimants.

I have always been taught that the IRS will not pry into whether or not the contingency such as child support has been met or not. Basically the IRS says unless you have the Form 8332 or another signed document containing the exact same information as Form 8332 the custodial parent receives the child's exemption, period. The battle over any other issues, such as noncompliance can be fought elsewhere, such as in court.

[Nashville]

Relevant 8332 Info

Don't hold your breath waiting for judges in my part of the country and their kangaroo courts to have enough foresight to make sure all of the relevant 8332 information is on the divorce decree. You're giving them too much credit. I've seen literally dozens of these decrees in TN and surrounding states, and none of them have SS#s. Nada. Zilch. Zero.

[Burke]

I had a really sad case where the grandparents had actual custody (maybe not legal) of the kids, and fully supported them, paying for everything. They were on their health insurance, etc. Every year, the mother (their daughter) ran down to HRB, claimed the kids and the EITC, on about $3,000 of income and the IRS disallowed the GP's dependency deductions. Disgusting.