Our divorce decree states that I can claim our children for tax purposes even though I am the noncustodial parent and my ex-wife is the custodial parent.
Now my ex-wife wants to claim one or both of our children on her taxes because she no longer thinks it’s fair that the noncustodial parent is receiving the dependent exemption.
What will happen if she violates the decree and claims our children on her taxes?
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Pennsylvania divorce laws where I am licensed to practice.
You present a complicated question that involves aspects of state domestic relations law and also federal tax law.
Under IRS regulations, the custodial parent is entitled to claim the dependent exemption for minor children. This is true regardless of the amount of support paid by the noncustodial parent.
This presumption is not rebuttable; however, it can be waived by the custodial parent. Furthermore, only the party entitled to claim the dependency exemption may claim the child tax and education tax credits.
Your divorce decree is a binding agreement for you and your ex-wife, but it is not binding on the IRS. If you and your ex-wife both claim the exemption your returns will automatically be flagged for investigation.
But your divorce decree is an order of court. If your ex is not following the provisions of the order, she may be in contempt of court, and you could file a contempt motion in family court to try and get the judge to make her abide by the terms of the divorce decree.
The best way to claim the dependent exemption when you are the noncustodial parent is to have your ex-wife sign IRS Form 8332 relinquishing her right to claim the exemption and attaching that signed form to your tax return. In the form, she could agree to do this for one year, or several.
If your ex refuses to sign Form 8332 you should attach part of the divorce decree (the cover page, the page that awards you the exemption, and the signature page) to your tax return as proof that you are entitled to claim the dependent exemption. The IRS may or may not accept the decree in lieu of Form 8332, dependent upon how the exemption was awarded to you in your specific decree.
Where I practice, the court has jurisdiction to award the exemption to the noncustodial parent and to order the custodial parent to execute the waiver in connection with a child support proceeding.
This is utilized when doing so will free up more money for the support of the children. If this is the instance in your case, you may consider getting her to execute the form via this route.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with divorce lawyers for men in your jurisdiction.
Note: This information is general in nature and should not be construed as tax advice. You should work with your attorney or tax professional to determine the tax advantages that will work best for your situation.