This letter is from a friend, he asked me if I could type it out for him because he has no computer. Thought you might wonder since it was coming from someone named mygirlpunky!

I am a the non custodial parent, the father, my child support is taken directly from my check each week and I am not behind on any support. The court ruled several years back that we took turns each year claiming our child. By the time everything went through the system, I should have been able to file for 02, 04, 06 and this years tax returns. The mother has always filed before me and claimed our child on her return for 02, and 04. She makes it very difficult for me to get my weekends with my son, so I didn't want to rock the boat and I never fought it. I got my taxes sent in before she did in 06, so luckily that was my first year I got to claim him. Now this year, she called and asked me if I was claiming him and told her yes, as it was my year and she said okay. I just got word from my tax lady that the mother had already filed before me and claim our son herself. I was already going to have to pay into taxes this year and now it will be an extreme amount for me since she dishonestly pulled this stunt again. I intend to file a paper return and I know this is going to get messy. Not only will she be livid, but she will do anything in her power, out of spite, to make it difficult to let me have time with my child, if I proceed with my claim.
The child support I pay is more than many custodial parents receive and I don't begrudge paying any of it for my son. But I do feel I have my rights to claim him on my years, just as the judge ruled. Lawyers are so expensive and I've been down that road a couple of times, fighting for my rights with my son but somehow it always seems she finds a way to manipulate her power as the custodial parent. You can only afford to go back to court for so long. Can anyone give me advice, or what is going to happen with us both claiming it is our year? Will it eventually work out for me to claim him as I rightfully have, or will she find a way to get everything the way she wants.
There is no discussing any of this with her, she is impossible to make her see I have rights just as well.
Thank you for any advice that can be passed on!

If both parents claim the child, it's going to turn into a mess. Ultimately, the parent who was not supposed to claim the child that year will be forced to repay the IRS any money hat they were given due to claiming the child, not to mention any penalties and/or fees.

If you have a court decre that says you have the right to claim the child even though you are non-custodial, then by all means do so. You will have to file the old-fashiond way - by paper, not electronically. Attach to your return a copy of the court decree. The IRS will see that two people are trying to claim the same child and will investigate. Given that you have the court decree, you will prevail.

For details on this, see IRS Pub 501 page 13, "Divorce decree or separation agreement made after 1984":
http://www.irs.gov/pub/irs-pdf/p501.pdf

This is an update to the question about non custodials year to claim his child but custodial parent did it instead.

The custodial parent says she did not claim their child for 2008. The only other person who would have known the child's SS# was the non custodials ex wife. They divorced in the beginning of 09, and she would have had access to the child's info, which the child was only her step child. It was a bitter divorce and she is known for being devious and slick with the system. The custodial parent signed the form 8332 so the non custodial parent can send in with his paper return. Once the IRS receives this form and checks to see who it was that claimed this child first, will the person, the ex wife, be held accountable for the fraudulance of illegally claiming a dependent that she had no right to? Or will all that happens is that she is told to repay to the IRS? It seems as though being so dishonest should come with some penalty. And will the parents be told who used their child's SS# illegally? Thanks

Ok, here is the problem that may occur when splitting children on a tax return ( year year ), Many people use tax programs to do their taxes and they " import " the information from the previous year. It might be an oversight and that's all. So before you start slinging accusations around make sure you get it straight. Did the ex provide you with a copy of the filed tax return ? If its filled out by anyone but them then the other party may be responsible for the mistake. Even tax companies do this. Its very rare to find one that does taxes by hand anymore.

She, the ex, would have had to have imported the info from 2 yrs before because the father of the child gets to claim his child every other yr, not last year.
She called and wanted to file together because they didn't divorce until the first of this yr. He didn't want to because she works at a job that doesn't take out taxes and she doesn't pay into them during the year. She knew she'd be paying in a lot of money without his income which does take out for taxes, plus the benefit of him being able to claim his son for the year. They had to borrow money last year to pay the IRS and he was the one who ended up paying the whole thing. He didn't want both their names together on taxes this year and she not pay her part again.
Plus she had been recently telling others how much money she got back on taxes this year, which only seems possible if she claimed his son too.
We are normally not skeptical people but she has burnt him one to many times in the past.
Thanks

Maybe I got the wrong impression from the dates you posted. You had said 2008 taxes.

" The custodial parent says she did not claim their child for 2008 "(end quote)

The tax information would have been imported for the tax year of 2007. So your thinking is correct saying it was from 2 years ago.

MGP:

Regarding filing jointly - by all means your friend should not file jointly if he can't trust the ex to pay her fair share of the bill.

As for what "punishment" awaits the ex step-mom -- I would advise that this is not something to dwell on. The IRS will do its thing in time - if she is in fact guilty of having incorrectly claimed the child as a dependent, she will be liable for at least the back taxes she owes, plus interest. In addition she will spend a bunch of hours in correspondence with the IRS, and her tax return will fall under additional scrutiny. Rest assured she won't try it again.

I agree with what one of the others said about filing a return and attaching a copy of the court order authorizing your friend's claim of the dependency exemption. That ought to take care of the problem from his end.

There was a time when a non-custodial parent had to attach a Form 8223 to a tax return to claim a child as a dependent. This form was the 'release' of the dependency exemption that ordinarily belongs to the custodial parent. I don't think this is any longer required. But attaching a copy of the court order authorizing the release is a good idea.

According to IRS Pub 501, if the non-custodial parent claims the child then he/she must attach either:

a) A signed release from the custodial parent (form 8332), or
b) Pages from the court order, which must include the cover page, the pages that include the specific details that the non-custodial parent will claim the child, and the signature page with the other parent's signature and date.

See page 13 of Pub 501 for all the gory details: http://www.irs.gov/pub/irs-pdf/p501.pdf

Thanks for the info. The custodial parent filled out the form 8332 for him and it is on its way with his paper return. Now it is just a waiting game I guess. The website was very useful!
Thanks again to all.

We are going through the same thing and it is exactly what the IRS said to do, attach divorce decree it will take longer but she will find out that she is illegally filing, not good for her and not fair to my husband. She admitted to doing it to, wow. Q:so we should attach the divorce docs when we send in our w2s?

Kimmy: this is an old thread and the rules have changed a bit since it was started. If the divorce decree is from 2009 or after, then the only way for the non-custodial parent to claim the child is for the custodial parent to provide form 8332 to the non-custodial parent, and then the non-custodial parent attaches it to his return. No need to attach any divorce decree, because it doesn't matter what the decree says.

If the divorce occurred in 2008 or earlier, then you can either use Form 8332 or you can attach relevant pages from the divorce decree that provides details regarding what years the non-custodial parent can claim the child. If you go this route you must follow the rules as outlined on page 13 of Pub 501: www.irs.gov/pub/irs-pdf/p501.pdf

kimmy: this is an old thread and the rules have changed a bit since it was started. If the divorce decree is from 2009 or after, then the only way for the non-custodial parent to claim the child is for the custodial parent to provide form 8332 to the non-custodial parent, and then the non-custodial parent attaches it to his return. No need to attach any divorce decree, because it doesn't matter what the decree says.

If the divorce occurred in 2008 or earlier, then yuo can either use Form 8332 or you can attach relevant pages from the divorce decree that provides details regarding what years the non-custodial parent can claim the child. If yuo go this route you must follow the rules as outlined on page 13 of Pub 501: www.irs.gov/pub/irs-pdf/p501.pdf

Thanks, Ebaines. Good info. Haven't done any divorce cases since before then.