Question: I have been divorced for a few years. The divorce decree says I get to claim my daughter as a dependent and my ex is supposed to claim my son. The problem is that my ex beats me to the tax man every year and claims both children. What can I do to stop this?
Answer: You've learned that a divorce decree is typically binding only on the parties that agree to it -- and the Internal Revenue Service wasn't one of those parties.
The best way to protect your right to claim your daughter as a dependent is to have your ex-husband sign IRS Form 8332 waiving his right to claim her -- and you'll need to fill one out releasing your claim to your son. You need to fill out a separate form for each child.
Ideally, this would have been handled as part of your divorce.
"It really surprises me that divorce attorneys don't automatically include Form 8332 as one of the documents to be signed whenever child support comes into play," Rosenberg said.
If you can't get your ex-husband to cooperate, you're not out of options. If your daughter lived with you for more than half the year and you provided more than half her support for the year, and can prove both facts, Rosenberg recommends you "go ahead and file your tax return on paper, the old-fashioned way."
The IRS will challenge you, but if you can defend your position, you can prevail.
On the other hand, if you only provided support but your daughter did not sleep under your roof for at least 183 days (or otherwise met the "living with you" standard outlined in IRS Publication 501), you will lose the exemption.
"This is where getting that Form 8332 signed at the time of the divorce is so critical," Rosenberg said. "Without it, in a dispute, you lose. Sorry."
From the LA Times.
What if you cannot get the ex spouse to sing form 8332 but the Judge who issued the original divorce decree issued a new separate order indicating that the non custodial parent can claim 1 out of his 3 children? Does the Court Order supersede IRS guidelines and this form?
Posted by: Karen Caprio-Devore | April 23, 2008 at 01:08 PM
My husband has a 8332 Form signed by his ex wife stating she sill not claim their 2 children for all future years, but we went to do our taxes today and could not e file claiming his kids because she already did.. now we have to file a amendment.. how is she able to claim the kids when she signed the form stating she would not?
Posted by: Mandy markley | February 05, 2009 at 07:30 PM