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Who can claim minor child on taxes?

Appleton, WI |
Filed under: Divorce

The divorce in question has been final for almost a decade. Minor child is primarily living with father, who is receiving $32 per week in support from mother. Mother has visitation on average of 2 nights per week.
Father has paid all of child's medical expenses.
Father has paid all of child's school expenses.
Mother filed bankrupsy this year, and is unemployed currently.
Father has provided more than 75% of lunch money expenses.

Current court document in place says mother claims child every year. This was a handwritten document signed by both parties while the child was still in primary care of mother. Circumstances drastically changed this year. Document not signed by judge.

Who gets to claim the child on their 2011 taxes? If father claims child, will he get in trouble by IRS?

Attorney Answers 3


The answer depends on who you ask.

The IRS only cares about form 8332. Without it, one does get in trouble with the IRS.

The court only cares about its order. So, for them to care otherwise, you have to go back to court.

The other parent will keep doing what the court order says because they have the court on their side.

So, that seems to say that the other parents will get them until the court orders otherwise.

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4 lawyers agree


I am sorry that you are going through this. The court order will control until you change it, the IRS doesn't really care they only want an answer and to be paid, so if there is a change in material circumstances and you feel that you deserve the deduction and that the original handwritten document needs to be altered, file a complaint for modification with the court. take care and good luck.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

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It sounds as if the father will be allowed to claim the child as he has them for a substantial part of the year and provides the majority of the support. If the mother were to claim the child, she will need to have a signed form, not the father. The father will merely need to establish that the child lived with him a majority of the year. Mail from the child's school addressed to the custodial parent is usually good enough to substantiate this and place the burden on the other parent to produce something better.

Christopher Larson Insight Law

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Will the IRS care about the form signed by both parties? Or was that made null and void by the current custody agreement making the father the custodial parent?

Christopher Michael Larson

Christopher Michael Larson


The IRS only has to care about Section 152 because of the Supremacy Clause. However, that doesn't mean you cannot be held in contempt by a state court. Either way, a state court cannot grant somebody Head of Household status, etc. The only thing that can be bartered is the dependency exemption.

R. S. Missimer

R. S. Missimer


The IRS will make this decision in what will seem like an audit. They will drag both parties (kicking and screeming) into the discussions and make a determination. Then the the ex can file for contempt and get the court to award the money to be paid to her that she would have lost, or for the tax filing to be amended. Then there is always the chance of 6 month jail. It is far better to file a motion for change and do it the proper way.

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