My divorce decree states I can claim my kids on my taxes as long as I'm current in my obligations. I am current but I need to know what will happen if she claims the children? Will my decree overturn her claim?
by 
donald macleod
ANSWERS: 4
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Going through the same thing right now, be consistent and make sure you have all of your paperwork in order. My ex used to have custody, and I obtained custody in May of 04, she claimed the children anyway and I had to prove that I had the kids- I sent in all of the paperwork, and on one page their was a "date signed" and an "effective date" the examiner went with the "date signed" and now we are going through appeals. Went to the IRS today and asked them and they told me it was a civil matter...? Yea that's my thought as well. The best thing to do is file your taxes as soon as possible (even if you have to work something out with your boss to get your w-2's early). If she is found at fault and you have a good examiner they will give you the refund and she will have to pay the money back and then could get in trouble and not be able to claim EIC for a certain number of years.
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I'm going through the same thing. On my divorce decree, it also states that I can claim one, every year and we share the second child, me on odd years and her the even years. For some reason or another, she has claimed them or allowed someone else to. This has happened before and I was given my refund, after sending in the decree, which I've done again. I'm still waiting on an answer. I don't know how they're allowed to override a court order. You would think that once they tried it, it would be put in the system to reject them the next time. Can someone please help us?
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I am not a lawyer, and I find myself on the other side of this issue as I provide over half of the support for my step children, After reading the tax law on this, and looking up my high school civics lessons, the IRS really has no interest in a state divorce decree. Look up the Supremacy Clause in regards to Federal v/s State laws. Although you may have to prove yourself in a court on contemp charges, If you meet all the guidelines established by the IRS, you can claim the exemption. Also most people do not know that the non-custodial parent must have a form 8332 signed by the custodoal parent releasing claim of exemption.
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I am going through the same situation with my fiance's ex-wife and this is what I found out. Even if it states in the divorce paperwork that you are allowed to claim said child you also have to get the custodial parent to sign form 8332 which is to release of claim to a child exemption. Make sure that you put for all future years so you don't have to go through the same hassle next year. On the form it states that if they don't sign you can still prove your point if you attach the cover page with your ex's SSN, the pages with the information stating that you get to claim the child, and the signature page of the Order of Child Support. I am still going to send this form 8332 to her along with a letter stating that I will still get the exemption without her help and if she doesn't sign and still claims the child she will be in trouble with the IRS and not get the exemption or have to pay it back. I hope this helped.
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