Taxizen Posted July 10, 2009 Report Share Posted July 10, 2009 My client (she) was divorced couple of years ago. There are two children. According to the divorce decree, each parent can claim each child. Two children have lived with the mother. The ex-husban filed the bankruptcy in 2008 and provided no more child support since then and has not enougn income to claim a child in 2009. In this case, can she claim the child as a dependent since she didn't received support form the ex-husband and against the divorce decree? Any advice would be appreciated. Quote Link to comment Share on other sites More sharing options...
Lion EA Posted July 11, 2009 Report Share Posted July 11, 2009 Well, the IRS claims to be above state law, so it will rely on its own definitions of dependency. If minor children live with the mother and meet all tests of dependency, they are dependents of the mother for IRS purposes. That said, your client does have to abide by her divorce decree and state law. If she is supposed to sign the dependency over to her ex for one child but the ex does not request Form 8332 for this year due to no need for an extra exemption, then your client can decide to claim both children. The IRS does not care who supports the children as long as a child does not provide more than half his/her own support. Explain the rules to your client and let her make the decision. You don't want to be responsible for her ending up in court. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted July 11, 2009 Report Share Posted July 11, 2009 Actually, if he does not pay the child support, she does not have to allow him to claim the child, regardless of the the decree, because HE has already violated that decree by not making his support payments. Quote Link to comment Share on other sites More sharing options...
Lion EA Posted July 11, 2009 Report Share Posted July 11, 2009 That's going to depend on state law. In CT, I cannot violate any terms of my divorce decree without risking consequences no matter how many violations my ex has. Anything my ex does or does not do does not let me off the hook. The decree is quite clear re still standing even if a section or more is violated. The IRS does not care. But, my ex might. I've seen ex-spouses sitting in jail with too much time on their hands take their exes to court re real or imagined violations of divorce decrees. Very costly by the time you hire a lawyer, take time off work, hire babysitters, etc. Quote Link to comment Share on other sites More sharing options...
RoyDaleOne Posted July 12, 2009 Report Share Posted July 12, 2009 http://www.irs.gov/publications/p501/ar02....ublink100041862 See the part about divorced parents. Quote Link to comment Share on other sites More sharing options...
jainen Posted July 16, 2009 Report Share Posted July 16, 2009 >>According to the divorce decree, each parent can claim each child.<< The divorce decree can not change federal tax law--she is entitled to claim both children in ANY case. I guarantee that court order does not specify she must sign Form 8332 even when child support is in arrears. And even if it did, the tax code still specifically says the divorce decree can't be used to determine dependency. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted July 16, 2009 Report Share Posted July 16, 2009 I think Jainen has touched on the key element here. While the decree may say that "each parent gets to claim one of the children", it is highly unlikely that it says that "the custodial parent must sign the 8332 even if the child support has not been paid", and without the signed 8332 the non-custodial parent can not claim the child. Unless, of course, he lies and claims the child actually lived with him more than half the year, as we have all seen some do, to get around not having the 8332. Also, I can not speak for all jurisdictions, but I do know that here, if someone takes the custodial parent to court for not following the decree and signing the 8332, when the reason given is that the other parent did not follow the decree and pay the support, the court will not find her in contempt. To do so would be unconcionable and an honest judge will always take both parties actions into account. Now, if he only missed one payment, or had a really good reason, that could make a difference. But no way will an honest judge reward a scofflaw for his actions in such a way. Quote Link to comment Share on other sites More sharing options...
Chowdahead Posted July 23, 2009 Report Share Posted July 23, 2009 >>According to the divorce decree, each parent can claim each child.<< The divorce decree can not change federal tax law--she is entitled to claim both children in ANY case. I guarantee that court order does not specify she must sign Form 8332 even when child support is in arrears. And even if it did, the tax code still specifically says the divorce decree can't be used to determine dependency. However, the divorce decree affects who the IRS interprets federal tax law, and that is key. Additionally, according to the IRS, they accept a divorce decree in-lieu of the 8332 for divorces decrees/agreements signed after 1984, and before 2008: http://www.irs.gov/publications/p501/ar02....ublink100041862 Divorce decree or separation agreement made after 1984. If the divorce decree or separation agreement went into effect after 1984, the noncustodial parent can attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support. The custodial parent will not claim the child as a dependent for the year. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent. The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return. The cover page (write the other parent's social security number on this page). The pages that include all of the information identified in items (1) through (3) above. The signature page with the other parent's signature and the date of the agreement. The noncustodial parent must attach the required information even if it was filed with a return in an earlier year. Beginning with 2009 tax returns, the noncustodial parent will no longer be able to attach pages from the decree or agreement instead of Form 8332 if the decree or agreement was made after 2008. The noncustodial parent will have to attach Form 8332 or a similar statement signed by the custodial parent and whose only purpose is to release a claim to exemption. If the decree/agreement was signed after 2008, then they require the 8332, or a signed statement similarly worded. Quote Link to comment Share on other sites More sharing options...
jainen Posted July 23, 2009 Report Share Posted July 23, 2009 >>they accept a divorce decree in-lieu of the 8332 for divorces decrees/agreements signed after 1984, and before 2008<< Thank you for pointing that out. I did not realize that IRS was taking that position. It is of course in direct violation of the current code, so I would not hesitate to advise custodial clients that they can take the exemption if they have not signed Form 8332, regardless of the divorce decree. Anyway, it would be a rare divorce decree that assigned the exemption unconditionally. Two other ways a custodial parent could get around the divorce decree--by revoking the release of exemption, and by arranging for more than half the child's support to be provided through a third party. Quote Link to comment Share on other sites More sharing options...
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