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Does the IRS trump the CO?

ej'scrazy's picture

So, here's a question, since it's almost tax time. When the divorce decree was written (due to BM's manipulation of what she was actually making) she was granted claiming both of the skids on the taxes. Otherwise, DH would have owed close to $500 in CS each month.

Within months, DH was able to prove that BM lied/manipulated and CS disappeared as it was addressed in court. However, taxes were never discussed (stupid, I know.) For the last few years, DH and I have had the kids way more than 50% of the time. This year, we definitely did.

According to the information I have found, the IRS rules say:

Post-2008 divorce decree or separation agreement.
If the decree or agreement went into effect after
2008, a noncustodial parent claiming an exemption for a
child cannot attach pages from a divorce decree or separation
agreement instead of Form 8332. The custodial parent
must sign either a Form 8332 or a similar statement.
The only purpose of this statement must be to release the
custodial parent's claim to the child's exemption. The noncustodial
parent must attach a copy to his or her return.
The form or statement must release the custodial parent's
claim to the child without any conditions. For example, the
release must not depend on the noncustodial parent paying

So, my question is this: Does DH have a right to have the CO modified? Does DH have the right to claim the skids on the taxes?

ej'scrazy's picture

He wouldn't it without going through the legal means. He's waiting to be able to get the CO amended to be what the actual time share is.

AllySkoo's picture

Talk to a tax attorney, for sure. My understanding is that the IRS only cares who has the child 50% or more of the time, and if you can prove that then you're find regardless of the CO. But I am NOT an attorney!!!

Glassslipper's picture

Had similar issue with my ex claiming both kids when we agreed each would just claim one...
IRS claimed that they go by their OWN investigation, and my lawyer said, that if he does it again, take him to court for contempt. I told him I spoke to the IRS and we would be undergoing an audit this year if he claims our daughter...again, against the court order and back to court on contempt...

He didn't file her that year...huh. weird how that works...