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I have joint custody of my daughter, and there are no court papers stating which one of us can claim my daughter for taxes. Almost every year my ex has claimed her, but this year I claimed her. Now my ex is telling me that I'm going to prison for claiming her, is this true? I can't seem to get a straight answer out of anyone I ask.
Thank you
No, you aren't going to prison unless you committed some type of IRS fraud - and even then unless you pretty much held up the IRS office with a machine gun, you aren't going to prison.
If you BOTH claimed your daughter IRS will collect proof from both of you and make a decision concerning which one of you is entitled to the exemption. It's as simple as that.
I am soory for your trouble; I know it must be upsetting.
JudyKayTee is absolutely right; don't let the man bully you with those kinds of threats.
Now, carefully read this:
Publication 504 (2008), Divorced or Separated Individuals about divorced or separated individuals. You will have your answer.
Quote:
Originally Posted by Five Rings
It is not necessary to read the entire Act. The pertinent info is:
"Children of Divorced or Separated Parents
A dependent is either a qualifying child or a qualifying relative. In most cases, because of the residency test (see item (3) under Tests To Be a Qualifying Child in Table 3), a child of divorced or separated parents will qualify as a dependent of the custodial parent under the rules for a qualifying child. However, the noncustodial parent may be able to claim the exemption for the child if the special rule (discussed next) applies.
Special rule for divorced or separated parents. A child will be treated as the qualifying child or qualifying relative of his or her noncustodial parent if all of the following apply.
The parents:
Are divorced or legally separated under a decree of divorce or separate maintenance,
Are separated under a written separation agreement, or
Lived apart at all times during the last 6 months of the year.
The child received over half of his or her support for the year from the parents.
The child is in the custody of one or both parents for more than half of the year.
Either of the following applies.
The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement made after 1984 , later.)
A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2008 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during 2008. See Child support under pre-1985 agreement , later.
If the support of the child is determined under a multiple support agreement, this special rule for divorced or separated parents does not apply. See Multiple Support Agreement in Publication 501 for more information.
Custodial parent and noncustodial parent. The custodial parent is the parent with whom the child lived for the greater part of the year. The other parent is the noncustodial parent.
If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater part of the rest of the year.
Example.
Under the terms of your divorce, your child lived with you for 10 months of the year. The child lived with your former spouse for the other 2 months. You are considered the custodial parent.
Written declaration. The custodial parent must use either Form 8332 or a similar statement (containing the same information required by the form) to make the written declaration to release the exemption to the noncustodial parent. The noncustodial parent must attach the form or statement to his or her tax return.
The exemption can be released for 1 year, for a number of specified years (for example, alternate years), or for all future years, as specified in the declaration. If the exemption is released for more than 1 year, the original release must be attached to the return of the noncustodial parent for the first year, and a copy must be attached for each later year.
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. To be able to do this, 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 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.
Divorce decree or separation agreement made after 2008. Beginning in 2009, a noncustodial parent claiming an exemption for a child can no longer attach certain pages from a divorce decree or separation agreement instead of Form 8332. The noncustodial parent must attach Form 8332 or similar statement signed by the custodial parent. The only purpose of this statement must be to release the custodial parent's claim to the child's exemption.
Remarried parent. If you remarry, the support provided by your new spouse is treated as provided by you.
Child support under pre-1985 agreement. All child support payments actually received from the noncustodial parent under a pre-1985 agreement are considered used for the support of the child, even if such amounts are not actually spent for child support.
Example.
Under a pre-1985 agreement, the noncustodial parent provides $1,200 for the child's support. This amount is considered support provided by the noncustodial parent even if the $1,200 was actually spent on things other than support.
Parents who never married. The special rule for divorced or separated parents also applies to parents who never married.
Special support rules for qualifying relative. The tests that must be met for treating a child as a qualifying relative include the support test (see item (4) listed under Tests To Be a Qualifying Relative in Table 3). The following special rules apply for determining whether the support test is met. "
I do stand by my initial answer, though, which is NOT what qualifies but if the person claiming the child can go to jail. The answer is - no.
What it all comes down to is this, since you have joint custody: which parent does the child spend the most time with? In the absence of a court decree that's the parent who claims the child, regardless of any "verbal agreements." If the child spends equal time with both parents, then the parent with the highest AGI "wins."
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