The divorce decree itself used to be the determining factor in who has the right to claim the dependents on their tax return, but since the IRS is not a party to that agreement they now request that a Form 8332 be completed and filed with them. This form advises the IRS of who can claim which dependent every year moving forward. Absent a completed Form 8332 the IRS will generally give the dependent to the person who files first. In a situation where both parties have claimed a dependent the IRS will issue a change letter to the parent who filed later proposing to remove the dependent exemption and/or child tax credit. You would then have to respond to them with a copy of the Court Decree. The IRS will most likely require that you get a form 8332 signed by your ex and file it with them before they allow you the exemption or credit. If your ex will not sign the form voluntarily then you will need to have your divorce attorney file a motion with the Court to compel her to sign it.
I cannot dispute anything my colleague states above.
I would add that the divorce decree is still a court order that binds the two of you to its terms. If you ex does not follow one or more provisions of the order, you may have a contempt situation which can be brought back to court through an "order to show cause" procedure that compels the alleged contemptuous party to answer for their alleged failure to abide by the terms of the decree.
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I agree with my colleagues. With that said, contact your divorce counsel to see if there are any additional concerns based on your particular divorce decree.
Julie Camden is authorized to handle IRS matters through the United States. Her phone number is 317-770-0000. Her email is firstname.lastname@example.org. For further tax advice, go to www.camlawyers.com.
The divorce decree is binding on you and your ex-wife. It is not binding on the IRS. Your ex-wife can't refuse to follow the divorce decree. Even if the children don't live with you, you are entitled to claim them as dependency exemptions if the divorce decree so provides. Your ex-wife would be required to complete IRS Form 8332 to release the dependency exemptions to you on your years, pursuant to the divorce decree. If she refuses to do so, you might try discussing the issue with the IRS to see if they'll accept a copy of the divorce decree in lieu of Form 8332. Otherwise, you could bring a motion in family court to have her held in contempt.
It is not binding on the IRS. However, the decree is enforceable through the contempt powers of the court and continuing jurisdiction over decree provisions.
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