Legal Question in Tax Law in Indiana

Form 8332 Release of Claim to Exemption for Child of Divorce or Separated Parent

In 1999 my ex-wife signed form 8332 when we were divorced. She released her claim of exemption on one child, for all future years. Now, since 1999 I have received custody and have had custody for 3 years, she has still claimed the one child. Yet, she has not had me sign form 8332 for me to release my claim to my childs exemption. Now can I in turn just start claiming both boys or is this form binding for all future years unless a judge has say in the matter? If I can begin to claim both boys, what if she claims one son next year after I have expressed that I will be claiming both boys, since she doesn't have a signed 8332 form? Thank you

Asked on 6/05/03, 8:58 am

1 Answer from Attorneys

John Cook Dunn & Cook

Re: Form 8332 Release of Claim to Exemption for Child of Divorce or Separated Pa

If I understand you correctly, you have been the custodial parent of both boys since 1999. If that is correct, then you have the right to take both boys as a dependent on your tax return, and your wife can only take them if you waive the exemption for a particular year or for all future years.

A problem usually occurs where one parent has the right under the tax law to take the child as an exemption, but under the divorce decree not to do so. In that case the IRS will allow the custodial parent to take the exemption, and let the parties fight it out in the local divorce court as far as whether one party is in violation of the divorce decree.

You did not mention whether the divorce decree gave her both exemptions. If it did, and even though you are now the custodial parent and are allowed by the IRS to take the boys as personal exemptions, if you do so, you could be hauled back to court by your ex as you are violating the court's divorce order.

In conclusion: (1) regardless of the divorce decree, your ex-wife's waiver for all future years is still good, and you can at least take the one boy as an exemption. She would be hard pressed to take you back to court for violating the divorce decree when she willingly signed the waiver.

(2) If the divorce decree is silent as to who gets to claim the boys on their tax retrun (which I can not believe would not be in the divorce agreement/decree), then you can take both boys since you are the custodial parent, and can also claim as head of household, which provides a larger standard deduction if you do not itemize deductions.

(3) If the divorce decree says she gets both boys on her tax return, I would try to get her to agree to a change in the divorce settlement to allow you to take both boys. If she refuses, then you might play hardball by telling her if she does not agree, thenyou will take her back to court not only on the exemption issue, but also for support since the boys are now living with you.

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Answered on 6/05/03, 5:07 pm

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