Who gets the tax exemptions?

[TopGun]

We are going to file 2009 taxes as married.  I was going to have them do it both ways, file together, or file seperately, to see which way works out best for the kids and I.  I get half if we file together.  Anyone have any input on this matter.  TG

[TC]

Exemptions are normally stipulated in the Divorce Decree.  Review yours carefully to see if that stipulation is there.

If it is not, normally the person with primary physical custody retains the exemptions unless the NCP demonstrates that he/she provides the majority of the financial support for the child(ren).

TC

[TopGun]

This was an agreement but I will have to read the decree a little closer.  I know that we will each have an exemption for 2010, but for this year if we file married but seperately, I was just wondering how that worked.  We both can't put the kids as exemptions, right?  I'm just asking so I will do the right thing for the kids and I.  TG

[TC]

Good question TG and if it isn't specifically specified in the decree...I would operate under the assumption that the exemptions are split as is stipulated for 2010.

TC

[livealittle]

We are going to file 2009 taxes as married.  I was going to have them do it both ways, file together, or file seperately, to see which way works out best for the kids and I.  I get half if we file together.  Anyone have any input on this matter.  TG

TC is right about a couple of things but starting in 2009 the NCP has to have the Form 8332 or statement signed by the CP giving up the tax exemption unless it's a pre 1985 divorce.

you can only file married filing jointly if you were married on Dec 31, 2009

the CP gets the tax exemptions for the kids unless

the NCP has form 8332 filled out

http://www.irs.gov/app/vita/globalmedia/8332.pdf

you should also read this section

New Rules for Divorced Parents

http://www.irs.gov/formspubs/article/0,,id=207333,00.html

a link to the table
http://www.irs.gov/app/vita/globalmedia/table_3_children_of_divorced_separated_4012.pdf

and a link to what the IRS does if both parents claim the child

http://www.irs.gov/publications/p504/ar02.html#en_US_publink100044170

it's called the tie breaker rule of Table 4 and every time I try to post something about this on the other part of the board "Money Questions" someone says this isn't correct. Lee even says my information is confusing. This is straight off the IRS website and out of the IRS publications. Read what it says.

[TopGun]

Thank you livealittle and TC, I will look further into this matter.  I did not recieve my decree until 4 days ago, but the divorce was on Nov. 23rd.  I will have to see when the judge actually signed the decree I guess.  TG

[Jade]

Thank you livealittle and TC, I will look further into this matter.  I did not recieve my decree until 4 days ago, but the divorce was on Nov. 23rd.  I will have to see when the judge actually signed the decree I guess.  TG

You can't file married.  You weren't married on 12/31/09.   You were actually divorced on 11/23/09.

And per the IRS, the parent who has the most overnights gets the exemptions.  Unless that parent signed a form 8332, which releases the exemption to the other parent.

[TopGun]

Jade, it is in our decree that I get the oldest son exemption and she get our daughters.  Once my son is of age, we will alternate our daughters exemption.  TG

[Jade]

Jade, it is in our decree that I get the oldest son exemption and she get our daughters.  Once my son is of age, we will alternate our daughters exemption.  TG

Then you will need to get your ex to sign the form 8332.  The IRS doesn't care what your court order says.  It's not in the business of interpreting state court orders.  The IRS only cares about which parent has the most overnights.  And, yes, NCP's and CP's have both claimed the same child in the same tax year and the IRS sided with the CP. 

[TC]

Jade, you are wrong.

http://www.irs.gov/pub/irs-pdf/f8332.pdf

TG read the secton: Special Rule for Children of Divorced or Separated Parents

Which States the Following:

Post-1984 decree or agreement. If the divorce decree or separation agreement
went into effect after 1984 and before 2009, 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 other parent will not claim the child as a dependent.

3. The years for which the claim is released.

The noncustodial parent must attach all of the following pages from the
decree or agreement.

Cover page (include the other parent?s SSN on that page).

The pages that include all of the information identified in (1) through (3)
above.

Signature page with the other parent?s signature and date of agreement.

[Jade]

Jade, you are wrong.




2. The other parent will not claim the child as a dependent.

TC, No, I am not.  See #2 above, that says it all.  Without a form 8332 SIGNED by the CP, the ncp can claim the child, but if the CP does as well, the IRS WILL side with the CP. 

Doesn't mean that he won't have a contempt case with the state court. 

But I am not wrong in who the IRS will side with in the abscence of a signed form 8332, which is the form that the CP signs stating that s/he will not claim the child.

BTW, you linked the form 8332.  Which is what I said he needed to get the CP to sign. 

Now, there are two spots for the CP to sign.  One is where the exemption is released to the ncp through emancipation, the other is for the current tax year only. 

[Wolfy]

Per my divorce decree I claim one of our children in odd years and the other child in even years as a dependent on my tax returns, but my ex has the kids more than 50% of the time so she gets the "Head of Household" exemption.

[m_t]

It is my understanding that an NCP MUST have a signed 8332 attached to his/her return, regardless of the decree.

[TC]

I claimed my kids for years.  Never had her sign a Form 8332.  Never had her sign a consent form.  But I did do what the Form 8332 said to do with regard to providing excerpts from the divorce decree.

Never had a problem.

TG, my advice to you is to pm Livalittle...she deals with this stuff quite often and is pretty derned sharp when it comes to the IRS.

TC

[livealittle]

It is my understanding that an NCP MUST have a signed 8332 attached to his/her return, regardless of the decree.

yes. beginning for tax year 2009. The NCP used to be able to include pages from the divorce decree - no longer.


http://www.irs.gov/formspubs/article/0,,id=207333,00.html

you should read that link - it is only 2 paragraphs. I've copied it below and added some bold emphasis.

Revocation of release of claim to an exemption. For tax years beginning after July 2, 2008 (the 2009 calendar year for most taxpayers), new rules apply to allow the custodial parent to revoke a release of claim to exemption that was previously released to the noncustodial parent on Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or similar form. The revocation is effective no earlier than the tax year following the year in which the custodial parent provides, or makes reasonable efforts to provide, the noncustodial parent with written notice of the revocation. Therefore, if the custodial parent provides notice of revocation to the noncustodial parent in 2009, the earliest tax year the revocation can be effective is the tax year beginning in 2010. You can use Part III of Form 8332 for this purpose. You must attach a copy of the revocation to your return for each tax year you claim the child as a dependent as a result of the revocation.
Post-1984 decree or agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent can still attach certain pages from the decree or agreement instead of Form 8332 provided that these pages are substantially similar to Form 8332.

For any decree or agreement executed after 2008, the noncustodial parent must attach Form 8332 or a similar statement signed by the custodial parent and whose only purpose is to release a claim to exemption.
   
most newbies on here were divorced in 2009 or later.