@Sophia
That’s an interesting way to look at it. Thanks!
@Rohan
Divorce agreements can sometimes override the IRS rules, and the IRS will usually respect that unless both parents try to claim the child. Then it becomes an issue.
oddah said:
@Rohan
Divorce agreements can sometimes override the IRS rules, and the IRS will usually respect that unless both parents try to claim the child. Then it becomes an issue.
Actually, after 2007, a divorce agreement alone isn’t enough for the IRS. They require Form 8332 to be signed and filed if the non-custodial parent wants to claim the child.
@Nevin
I went through this with my husband’s custody case. The judge said the parents could agree on who claims the child, but the court couldn’t enforce it since the IRS has their own rules.
Who has custody of the child?
Zora said:
Who has custody of the child?
She does.
Then, as far as the IRS is concerned, she’s the custodial parent and has the right to claim the child.
According to the IRS, the parent the child lives with for more than half the year gets to claim them, not based on court orders. If you pay more than half of the child’s support, you can file as head of household, but that doesn’t give you the tax credits.
@Wesley
Thanks for the clarification! That’s pretty much what my CPA said 6 years ago. I just wanted to make sure nothing has changed since then.
Is your ex paying child support? If she makes more money than you and she’s trying to take this tax benefit from you, maybe it’s time to think about adjusting child support to balance things out.
Ren said:
Is your ex paying child support? If she makes more money than you and she’s trying to take this tax benefit from you, maybe it’s time to think about adjusting child support to balance things out.
I’m the one paying child support, and she’s been paying alimony, but that’s about to end soon.
@Morgan
So you’re paying child support, she’s about to stop paying alimony, and now she wants to take a tax benefit that doesn’t even help her as much as it would help you?
That’s rough. If she pushes it, you should definitely try to even the playing field, especially if custody is split 50/50 or close.
I’m not a CPA, but I’ve had experience with someone wrongly claiming a child. My husband and I took in two kids that their parents basically abandoned with us. We supported them 100%, but one of their birth parents still claimed them on their taxes, even though they didn’t even see the kids.
The IRS went after us for tax fraud, which was a nightmare, but we eventually cleared it up. Sadly, their mom got hit with penalties because her ex-husband had been falsely claiming the kids, and she didn’t know because she had never filed taxes before. It was a mess.
So, my advice is to be very careful and make sure everything is documented in case things get ugly.
It sounds like this is more of a legal issue since your ex wants to change the terms of your divorce agreement.
You can find all the IRS rules in Publication 501: About Publication 501, Dependents, Standard Deduction, and Filing Information | Internal Revenue Service
It mostly comes down to who the child lives with more nights of the year. If that’s your ex, she’s probably the one who gets to claim the child, unless she gives you Form 8332.
If you and your ex both have the child for equal time, the IRS might use a tiebreaker like higher AGI to decide who gets to claim the child.
@Vail
It’s a tax question, really. I’m trying to figure out whether it’s worth giving up the right to claim the child in exchange for leverage in another issue we’re contesting.
If you get to claim your child, you could file as head of household instead of single (assuming you’re not married). You’d also be eligible for things like the child tax credit and earned income credit, depending on your income.
@Kerr
But the child doesn’t live with OP, so head of household and EITC aren’t options here. The child tax credit would still apply, though.
I paid more than half of the support, so I got to claim the child every year, regardless of how much time they spent at each house. This was in Washington State.
My ex went behind my back and filed for 100% custody in 2022, during the time we were still living together, and now she’s doing it again for 2023 and 2024. But during those years, she was out of the country for weeks at a time, and I had the kids.
I claimed the kids on my return to trigger an IRS audit, but they sided with her without proof. It feels like whoever files first gets the credits now.
She just needs the extra money for vacations.
@Sawyer
The IRS does care about who has the child most of the year, and often the second filer with paper proof wins. Make sure your name is on medical records, school records, and keep a log of nights the child stayed with you.