[willoughby04]

I have been paying child support for my child since 2002. I was recently told that every three years I should be eligible to claim my son on my taxes. Is this true and if so what do I need to do to be able to do this? My ex-wife is not working and is remarried.

[NowWhat]

Normally this should have been worked out in the divorce. I thought the standard was every other year. I would look at the divorce papers and see if it is outlined.

All of my divorced friends do the every other year thing with their ex's.
Hope this helps.

[MukatA]

Child support is never considered for claiming a child as dependent.
Only the custodial parent can claim the child. Non custodial parent can claim the child only if the custodial parent signs a declaration or if there is a court order.
So talk to your ex to see if she is willing to allow you to claim the child.

[mraquino21]

It is based on your divorce decree you can request copies of your divorce paperwork but will have to pay a small cost to obtain them. My ex husband paid child support for his kids his ex wife said we were not paying child support so we were going to have to double pay but i had proof and got that worked out i also got copies of everything in their divorce it showed that he could claim the kids every year well she had been doing it and he never did so when we filed our taxes that year h&r block copied where it showed he could claim the kids he claimed them that year and backwords for 3 years which she had to repay. Also, in my divorce i have full custody he pays me child support but it states that i claim our child every odd year and he does every even year. You need to get copies of your entire divorce decree and see what it says. Hope this helps.

[AtlantaTaxExpert]

Mraquino21:

First, TURN OFF THE CAP LOCK! Posting in ALL CAPS is considered shouting and is considered impolite.

That said, your post has valid points.

The divorce decree is a legal document. Most divorce decrees for the past ten years or so normally allow the parents to alternate who claims the child. If both parents agree with this, there is normally no problem as long as one claims the child and the other one does NOT.

When the divorce decree is mute on this issue (rare, but it does happen), the CUSTODIAL parent gets the exemption unless the non-custodial parent can prove conclusively that he/she is providing over half of the child's total support. (MukatA: Child support IS a consideration in this determination).

However, this is often very difficult because the custodial parent gets such a LARGE allowance for providing shelter that paying child support by itself cannot normally overcome this advantage.

However, in many cases, the custodial parent (usually the mother) does not need the child's exemption because of her relatively low income. In such cases, the parents should get together to work out the best solution for everyone, with the non-custodial parent (usually the father) normally claiming the tax exemption and then sharing a portion of his refund with the mother.

Many cases like this SCREAM for professional tax advice. If the tax pro is hired by BOTH parents to prepare their respective returns, he/she can act as honest broker and work the returns to produce the best results for BOTH clients. I have done this several times over the years (even for clients who had BITTER divorces), and, if handled properly, everyone WINS!

[mraquino21]

AtlantaTaxExpert, Sorry wasn't trying to be rude or shout. I honestly forgot to take the caps lock off I have to do all of my work in caps and have a bad habit of not turning it off because of that. I was just trying to offer any help that could come out of my experiences. Again I'm sorry about the caps being on.

[AtlantaTaxExpert]

Not a problem; live and learn!

[MukatA]

I am still not sure that a noncustodial parent can claim a qualifying child ONLY because he/she provided more than half of the support and can prove this fact.

[AtlantaTaxExpert]

Actually, it is spelled out rather well in IRS Pub 17 that a qualifying child does NOT have to live with the parent to be claimed.

Now, the noncustodial parent CANNOT claim the EIC for the child. EIC rules dictate that the child MUST live with the parent/guradian receiving the EIC.

[MukatA]

Yes, the Residency Test requirement has an exception for divorced or separated parents. Here if from Publication 17:

"In most cases, because of the residency test, a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if all four of the following statements are true.

1. The parents:
a. Are divorced or legally separated under a decree of divorce or separate maintenance,
b. Are separated under a written separation agreement, or
c. Lived apart at all times during the last 6 months of the year.
2. The child received over half of his or her support for the year from the parents.
3. The child is in the custody of one or both parents for more than half of the year.
4. Either of the following statements is true.
a. 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.)

b. A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2007 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 the 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.
1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
2. The custodial parent will not claim the child as a dependent for the year.
3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent."

[AtlantaTaxExpert]

Noted!

[The Texas Tax Expert]

I think you guys are talking at cross-purposes. ATE is right that the default is to the custodial parent unless the custodial parent relinquishes the right. However, I don't agree that the non-custodial parent has any support-related claim. It just doesn't matter how much support the non-custodial parent provides - all that matters is that the child doesn't provide their own support.

Thus, the non-custodial parent is basically going to have to sweet talk the custodial parent around, because they have no power to demand the exemption if this wasn't set out in the divorce agreement.

[AtlantaTaxExpert]

TTE has a point. The IRS' bias towards the custodial parent will make ANY claim by anyone other than the custodial parent a HARD sell.

[The Texas Tax Expert]

Well, I'm not meaning to be a nit-picker but... it is not the IRS's bias. It is the way that the law is written. The IRS is merely following the law when it defaults to the custodial parent. Sometimes, someone needs to defend the IRS :)

[AtlantaTaxExpert]

TTE, I humbly disagree!

The IRS are the only law enforcement agency where the burden of proof rest with the taxpayer, NOT the IRS!

In short, there IS no defense of the IRS! :-)

[oneguyinohio]

Now, the noncustodial parent CANNOT claim the EIC for the child. EIC rules dictate that the child MUST live with the parent/guradian receiving the EIC.

I think this is extremely unfair in the tax code, and biased against shared parenting agreements merely because of a legal residential issue...

What are the rationales for this when the non-residential parent is entitled to claim the child as dependent??

[The Texas Tax Expert]

TTE, I humbly disagree!

The IRS are the only law enforcement agency where the burden of proof rest with the taxpayer, NOT the IRS!

In short, there IS no defense of the IRS! :-)

Actually the IRS does a remarkably good job of administering a complex system. It doesn't make the law, it administers the law. There are competent and incompetent people in the IRS, like anywhere. But blaming the IRS for biases and complexities in the law makes no sense to me.

[AtlantaTaxExpert]

TTE, I AGREE with you! I was making a joke! That is why I put the smiley face at the end.

[RaY01]

What happens if the ex says "yes you can claim one of the kids" then after you did it she says "sorry but iclaimed both kids" what do yo udo next?

[oneguyinohio]

You have to get her to sign a paper giving you (the noncustodial parent) the right to claim the child for that tax year, otherwise, you'll need to file an amended tax return taking the child off that you claimed. It might cause a hold up on her collecting her refund especially if you did any electronic filing.

Legally, the IRS will probably come after you if she did not sign that paper, or if you didn't have anything spelled out in your divorce agreement.

When the child's social security number shows up being claimed by more than one person, that is a big red flag for the IRS.