Taxes

Forum|Forum|1 year ago
April 2, 2025
2 replies
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Question so on me and my ex’s divorce decree, it states that one parent can claim on even years and one on odd years. But I have sole physical and legal custody of our daughter, and he only sees her every other weekend if that. He does not ever have her 6 months or half of the time out of the year. So my question is where it is stated in the divorce decree, but he is putting on his tax return he has her that much out of the year when he doesn’t, can he get in trouble for that and can I tell him no he isn’t claiming her because I have more custody?

xmasbaby0

Employee

Are you the custodial parent? Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody? Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit. The non-custodial parent gets the child tax credit for children under the age of 17. If the child is 17 or older the non-custodial parent gets the $500 credit for other dependents.

If you and the other parent have a signed agreement, you need to indicate in MY INFO that you have such an agreement.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**

LG4273Author

I have some physical and legal custody I have her all the time besides every other weekend. We do have a divorce decree that states we both can claim every other year yes. We have not signed that form.

DavidD66

Without a signed Form 8332 waiving their right, the custodial parent has the right to claim the child (assuming the child meet the all requirements to qualify as a divorce dependent). If you don’t follow the divorce decree, and claim the child in a manner that doesn't follow your divorce decree, your ex-spouse might have a legal claim against you. But that's a legal matter beyond the scope of this Community.

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xmasbaby0

Employee

The IRS cares about physical custody. Courts often make up rules for divorced parents that do not align with IRS rules. The IRS does not care about your divorce decree. We do not give legal advice here. Only you can gauge the risk of how contentious your ex-spouse might become if you go ahead and claim the child on your own tax return. The child cannot be claimed on two returns.