Tax Tips: What Will Happen If My Ex Violates The Decree And Claims The Dependent Exemption?

Pittsburgh divorce lawyer Anna CiardiQuestion:

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?

Answer:

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.

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Tax Tips For Divorced Dads

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.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Pittsburgh Divorce Lawyer Anna M. Ciardi, contact Cordell & Cordell.

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4 comments on “Tax Tips: What Will Happen If My Ex Violates The Decree And Claims The Dependent Exemption?

    I am the custodial parent and we were to split child exemptions on all tax years, the non-custodial parent violated the order that is clear in my court documents he claimed both children from 2011-2014. What can I do for to recover this lost exemption for past years now that it was finally discussed in child support hearing and I have more documentation. I am wanting to file for 2011-2014 to recover the loss without hiring a lawyer, what can i do?

    You can go back up to three years. My ex husband did the same to me its so unfair. Our divorce decree states he gets the exemption so I believed that to be true then come to find out it’s not true at all. We have three girls and he only gets visits with one of them the other two he hasn’t seen or talked to in nearly 5 years and only living a few miles away he claims them on his taxes every year. I was able to go back three years and sure enough I got over $15,000 but unfortunately I cannot go back further as he even forged my signature in 2010 and took our 3 daughters and myself one last time and it’s so upsetting he’s going to get away with those earlier years. I’ve reported him for the past two tax years and sent him certified letters telling him he does not have my permission and I am going to claim them he told me he does not care what I say or what IRS rules are he’s going to continue to claim them every year. So again this year he did it again and did it electronically so when I did mine I was rejected which tells me another year and he still has not been busted. I’ve read that it can take up to two years for him to be audited. I hope he is held responsible and has both interest and fines. Although his parents are rich and he’s not going to suffer the loss either way I still want him held accountable to say the least. Not to mention the time and energy I’ve put into this the tears and frustration. I wish you the best of luck hurry go file the last three years and DON’T give up it’ll be worth it in the end is what I have to remind myself.

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