Can dad Claim dependent, child lives with Mom never married

[nwtaxlady]

Here is the situation. My clients AGI is about $200K The husband has a child from prior relationship that they were never married. So the custodial papers state he provides 88.5% of her care. This includes child support payments and medical etc. Yes he is all caught up. The child lives with her Mom in another State. Again, never married. The Uniform Child Custody Jurisdiction and Enforcement court papers state that the Father pays 88.5% of child's care & expenses plus medical etc. Also states He is entitled to claim the child as a dependant for income tax purposes every year as long as he is current on his support.


Yes, he is current on his support. So can he claim the child? Again the child lives with Mother.
I am just wondering if the court documents are still considered for dependency exemptions?

Can he claim the child or not?

[Gary2]

Because the papers say it's conditional on his being up to date with support, they can't be used by themselves to claim the exemption, even if they're pre-2009. (I haven't checked the pre-1985 rules, but I'll assume that doesn't apply.)

So the dad can only claim the child if he gets an appropriate 8332 or similar from the mom. In theory, a state court could take action to compel mom to sign such.

[ChEAr$]

One question however. how old is the child? Younger than state's usual emancipation age?

That could be a factor, since children after a certain age are no longer under custody of a parent.

[nwtaxlady]

The child is 16

Child is only 16. In the past, the Father's return would reject and he would mail in the return with a copy of these papers. And so far has not been questioned. I know I have read something about some changes to this type of situation but I am a little foggy on it. So I need some advise to what is IRS' stance is on this situation today lol..

[taxea]

He needs a F8332 from the mother. IRS rules trump court orders.

[nwtaxlady]

court papers are from 2005

I checked the date of the court papers. They are dated 2005. So since it is before 2009 then I think sending the court papers in with the 8453 would be sufficient? Is that right, Or Am I way off ??

[DexEA]

You can if...........

Post-1984 and pre-2009 decree or agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent can attach certain
pages from the decree or agreement instead of Form 8332, provided that these pages are substantially similar to Form 8332. To be able to do this, 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 other parent will not claim the child as a dependent.

3. The years for which the claim is released.

The noncustodial parent must attach all of the following pages from the decree or agreement.

● Cover page (include the other parent’s SSN on that page).

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

● Signature page with the other parent’s signature and date of agreement.

[Gary2]

I checked the date of the court papers. They are dated 2005. So since it is before 2009 then I think sending the court papers in with the 8453 would be sufficient? Is that right, Or Am I way off ??

You are way off, because the condition that says he must be current on child support invalidates the use of the court papers in lieu of the 8332.

[ddoshan]

The divorce agreement might work if the Ex Wife did not claim the child. However, in a conflict, I have never seen a divorce agreement that met the tests required to be a valid subsitute for form 8332.

[taxea]

http://www.journalofaccountancy.com/Issues/2013/Apr/Dependents.htm