Today TaxMama hears from a divorcee who is concerned. She says “I got divorced in 2001. The decree stated that we would each claim one child as a dependent. When I moved to another state in 2006 my taxes were done by H&R Block. I didn’t realize they had claimed both children in my tax return. Now my ex-husband is saying that I violated our divorce decree. I talked with the IRS and they helped me do an amended return but I want to know if I have been in violation? Or should I be entitled to both dependents since I have full custody of both children?”
Dear Divorcee,
Only an idiot would accuse you of violating your divorce decree, considering how quickly you went and fixed the problem. Clearly, this was an error. You’ve never done it before. Judges are much smarter than that.
Unless….is your ex-husband speaking of your leaving the state? Did your divorce decree have any restrictions on you moving the children so far from their father? But…that’s not a tax matter.
However, your next question is more interesting.
Should you be entitled to claim both children, since you have full custody and they live with you far more than 6 months out of the year?
Read the rules that IRS has for the right of the NON-custodial parent to claim a child as a dependent. Read the rules slowly and carefully. Especially read conditions 4 (a) and 4 (b).
https://www.irs.gov/publications/p17/ch36.html#publink100035142
Technically, unless you have a pre 1985 divorce decree (in which case your children are at least 23 years old), IRS doesn’t care what your divorce decree says.
If you haven’t signed a Form 8332 giving up your right to claim one or both of your children as dependents, your ex-husband would lose his case before IRS.
So if your ex wants to continue to get the benefit of claiming one of your children, tell him to ask nicely. He should consider himself fortunate that you’re so ethical.
And remember, you can find answers to all kinds of questions about divorce and other tax issues, free. Where? Where else? At TaxMama.com
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- IRS Publication 17 :: Special Rules for Divorced or Separated Parents
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