I called the the IRS and asked if I can claim my daughter who I had physical custody of all of 2009 even though my Oregon divorce decree said my ex is entitled to claim her. The IRS rep asked me a series of questions and at the end said I should claim and that when the letter goes out to us that we both claimed her I just need to prove she lived with me all year. Looking at the 2009 tax book it said all 3 criteria needed to be met in that the decree had to say: The non-cust. parent (her) can claim without regard to support, that the custodial parent won't claim (Me), and that the decree needed to state years that custodial parent can claim . All my decree says is that she is entitled to claim. I claimed her and now am having second thoughts as to the legality and am worried.
Divorce / Separation Lawyer
This is a question that comes up frequently in divorce cases. Without reviewing your decree it is impossible to completely answer your question. Regardless of IRS rules, you could be in contempt of court if you claim your daughter as dependent and the divorce judgment says that you cannot. You need to consult an experienced attorney who can review your judgment and help you think through your options, which may include filing to modify/clarify the judgment.
I would also suggest that you seek the advice of a competent and experienced CPA.
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