Claiming deductions for kids post-divorce

[Anonymous]

According to my sister's decree, she is allowed to claim two of the three children this tax year and her ex is allowed to claim one, provided he is "current in all financial obligations". My sister was to notify him by December 1st if he was not current and he then had 30 days to come up to date. Of course she neglected to do this explicitly, even though he has a number of outstanding orders including a contempt charge for not being up to date with what he owes her. So does she now only get to claim two exemptions, or can she claim three? If she notifies him today, I'm sure he will immediately prepare his tax return and file so he can claim his one exemption before she does. She wants to avoid asking her attorney for interpretation because she doesn't have the money to pay for extra advice. Any advice would be appreciated!

[Anonymous]

I'd move forward depending on how much money the deduction would save me. If it's alot - worth the trouble if ex doesn't cooperate - that's one thing. If it's not worth a lot - the costs of dealing with the IRS, maybe an audit, maybe having to take your lawyer to court if he makes a fuss - I would just take two deductions and not say anything.

[Anonymous]

Thanks for your reply. That is the stance she is taking. She really needs the money, and she is willing to gamble that she would eventually win any audit or challenge.

[Anonymous]

it all depends on what their custody/child support arrangement says. The risk is not so much being audited as being in violation of the family court order (if one exists--sounds like it does).

[Anonymous]

Anonymous wrote:it all depends on what their custody/child support arrangement says. The risk is not so much being audited as being in violation of the family court order (if one exists--sounds like it does).

As I said in the OP, the order said she is able to claim two if he is in fulfillment of his obligations. He is not and there is plenty of documentation to show that he is not. The difficult part is that he was not notified by December 1 that she intended to claim the third child in recognition of this. As a result, I am afraid he will challenge her claiming the third by saying she never specifically notified him and thus he has claimed child 3. Given that December 1 has passed, there's no way for her to retroactively notify him.

[Anonymous]

When was their divorce, and does she have the children more than half the year?

For an audit, she would be fine claiming all 3 - for her ex to claim them she would need to sign a form authorizing him to. A divorce decree is no longer enough to show that he has the ability to claim the child, according to IRS rules. If he does his taxes and the child does not live with him more than 50% of the year, he is the one misrepresenting his situation to the IRS.

[Anonymous]

Anonymous wrote:When was their divorce, and does she have the children more than half the year?

For an audit, she would be fine claiming all 3 - for her ex to claim them she would need to sign a form authorizing him to. A divorce decree is no longer enough to show that he has the ability to claim the child, according to IRS rules. If he does his taxes and the child does not live with him more than 50% of the year, he is the one misrepresenting his situation to the IRS.

Are you sure about this? Can you please tell me how you know this? I'm not the OP but this could be relevant to my situation, too. Thanks!

[Anonymous]

Anonymous wrote:Thanks for your reply. That is the stance she is taking. She really needs the money, and she is willing to gamble that she would eventually win any audit or challenge.

She could file for a delay. Wait and find out what he does. For example, file for a delay. Tell him you already took all three deductions because he's in arrears and you have a right to per the agreement. Let him tip his hand - does he freak, threaten, whatever. THEN she can actually file her taxes with two or three, depending on what she thinks he is going to do.

[Anonymous]

Anonymous wrote:

Anonymous wrote:it all depends on what their custody/child support arrangement says. The risk is not so much being audited as being in violation of the family court order (if one exists--sounds like it does).

As I said in the OP, the order said she is able to claim two if he is in fulfillment of his obligations. He is not and there is plenty of documentation to show that he is not. The difficult part is that he was not notified by December 1 that she intended to claim the third child in recognition of this. As a result, I am afraid he will challenge her claiming the third by saying she never specifically notified him and thus he has claimed child 3. Given that December 1 has passed, there's no way for her to retroactively notify him.

If the wording points to him not fulfilling his obligations, I'd file with the three deductions and not think twice. You say there is plenty of documentation. I would stop babying XH and move forward with filing my taxes. If and when there is notification from the IRS that he cannot claim them (that they have already been claimed) simply forward the pdf collection from that pile of documentation you have. Should he challenge in Court (and I've found that to be a threat I've always taken far too seriously), forward that stuff again.

The burden is on HIM to stay up to date with his obligations NOT on anyone to encourage him to be responsible.

DO NOT BE BULLIED.

[Anonymous]

Anonymous wrote:

Anonymous wrote:When was their divorce, and does she have the children more than half the year?

For an audit, she would be fine claiming all 3 - for her ex to claim them she would need to sign a form authorizing him to. A divorce decree is no longer enough to show that he has the ability to claim the child, according to IRS rules. If he does his taxes and the child does not live with him more than 50% of the year, he is the one misrepresenting his situation to the IRS.

Are you sure about this? Can you please tell me how you know this? I'm not the OP but this could be relevant to my situation, too. Thanks!

Not the PP, but I can tell you how bloody difficult it was when I actually allowed XH to claim the children one year. There was NOTHING to document his involvement with the children. H&R Block gave him hell on this. And, I was completely supportive of the claiming. So, there's that.

[Anonymous]

If the decree says she has to notify him, she has to notify him (or had to, previously.) Otherwise, it would say he just had to be in compliance. That was added for a reason (probably for his benefit, by his lawyer, because he knew she wasnt good with timeliness.) I honestly don't think she can win it, and she should only claim 2 because of it. Lesson learned. That said, he may not be willing to take her to court over it so it may not matter. But he might.

[Anonymous]

Thanks for all the replies. The divorce was in 2014. I also read about the form she has to sign for the non-custodial parent to claim any exemptions. From IRS website:

"For all divorces final after December 31, 2008, the IRS is no longer accepting a copy of a divorce decree to show who has the right to claim the dependency exemption. You must file Form 8332 or a substantially similar statement with the return or, if you file electronically, with Form 8453."

So I think she'd be fine with the IRS. But I bet he could sue her since she did not hold up her end of the bargain according to their agreement with regards to the notification. sigh. It's so frustrating!

[Anonymous]

Anonymous wrote:

Anonymous wrote:When was their divorce, and does she have the children more than half the year?

For an audit, she would be fine claiming all 3 - for her ex to claim them she would need to sign a form authorizing him to. A divorce decree is no longer enough to show that he has the ability to claim the child, according to IRS rules. If he does his taxes and the child does not live with him more than 50% of the year, he is the one misrepresenting his situation to the IRS.

Are you sure about this? Can you please tell me how you know this? I'm not the OP but this could be relevant to my situation, too. Thanks!

The IRS has a great search function on their website - that's how I know! Anyway, I'm linking to the relevant PDF below (see pages 10-11).

Basically, the custodial parent is the one that is allowed to claim the child(ren) on their taxes (according to the IRS - I have no idea what happens if the non-custodial files a violation of the divorce decree). For the non-custodial parent to claim the child(ren) they have to meet a series of requirements (page 10 in the pdf linked below), including either (1) the custodial parent signs form 8332 that states that they will not claim the child(ren), or (2) the divorce decree is from post-1985 and pre-2009 and states that the non-custodial parent is allowed to claim the children in certain years and the non-custodial parent provides at least $600 in support to the custodial parent.

https://www.irs.gov/pub/irs-pdf/p504.pdf

If a non-custodial parent is claiming the child(ren) without getting the custodial parent to sign Form 8332, what they are doing is claiming that the child(ren) live with them for more than half the year - which is tax fraud - and the IRS can and will go after them if they get caught (ie, someone turns them in, or the same child is claimed twice and the IRS investigates).

Since I never married my ex, and he didn't ask the support judge to allow him to claim our child every other year, I have never signed this form. I claim my child every year - my ex pays a pittance in support and he gets a state tax deduction for paying support on time.

[Anonymous]

Anonymous wrote:Thanks for all the replies. The divorce was in 2014. I also read about the form she has to sign for the non-custodial parent to claim any exemptions. From IRS website:

"For all divorces final after December 31, 2008, the IRS is no longer accepting a copy of a divorce decree to show who has the right to claim the dependency exemption. You must file Form 8332 or a substantially similar statement with the return or, if you file electronically, with Form 8453."

So I think she'd be fine with the IRS. But I bet he could sue her since she did not hold up her end of the bargain according to their agreement with regards to the notification. sigh. It's so frustrating!

19:14 here. I'm sure OP's ex could sue if she just files to claim the kids (which is what I think she should do), and I bet what would happen is the judge would see how silly that requirement is and strike it, and then tell the ex to get himself together. Also, OP should have his wages garnished for support if he's behind.

[Anonymous]

The other thing I learned about this by using turbo tax is that with that aforementioned form, you can 'claim' the third child as a non qualifying dependent. It doesn't allow you the full child deduction but allows you to qualify at higher amounts for the child care credit.