Hey Dave,
My two children live with my ex-husband. He is the custodial parent but we have joint custody. I pay child support and they come over to my house almost every weekend. We had a verbal agreement to each claim one child but now he wants to claim both kids. I filed my tax return and claimed one child, and then he sent his in later and claimed both. What is going to happen, and could we have each claimed one?
Sue
Hi Sue,
If your ex-husband’s return is processed before yours, your claim for the child will be rejected. If yours is processed first and your ex disputes your claim, then, as the custodial parent, he will be the one who is allowed to claim the child. (When a child is claimed as a qualifying child by two or more taxpayers in a given year, there are tiebreaker rules the IRS will use.)
Many Tax Court cases have even ignored written agreements and divorce decrees (issued after 7-2-08) that allowed one or the other parent to claim the child. It comes down to this: the custodial parent has a “higher” claim and if, and only if, the custodial parent decides to allow the noncustodial parent to claim the exemption for the child, a signed Form 8332 must to be attached to the noncustodial parent’s return.
Deductibly Yours,
Dave