26 answers

Taxes and 50/50 Custody

My childs father and I share 50/50 custody of our daughter, but he claimed her on his taxes for three of the 4 years we've had her. Our original agreement was that we would take turns filing every other year. But the second time it was my year to file he said he had her two more days then I did the past year so therefore he had her more then half the year and tough luck for me. As a broke single mom in college at that time, that was a huge blow for me. Now again he is saying we can just take turns filing every other year, but I'm afraid he will change his mind if he sees he had her one extra day. What are the steps to writing up a legal agreement and will that take care of the problem? Thanks.

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Thank you for the advice everyone. I did file my taxes first this year and reminded him that we need to get something notarized. I can't afford to do much more then get the piece of paper signed and notarized, so i will start with that. Thanks again!!


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You can write out what the agreement is and then have it notorized by a legal Notary. This is a binding agreement so if you have this and he changes his mind again, you have proof of the agreement and he would be breaking the "contract".
Good luck.

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I am not exactly sure on how you make it legal but I am just voiceing my opinion. It is wrong of him to do that to you. What if it was his turn to claim her and you were the one with the extra day or days. You should get it in writing from him that one of you will get her in even years and the other in odd years. I would get it notarized and call the courthouse and find out where to file it. Actually call them first and find out what will be sufficient. I am sorry he did that to you. Fell free to write me back.


my advice...get it in writing and have it notorized!!!!

i am a single wokring mother of two. i have 50/50 custody with my youngest and i claim the earned income for him but his father claims the childtax credit. It is how our child support papers were drawn up by his lawyer. Although at first i did disagree,I didnt' really understand the whole deal, but it does work. I would recommend that you most definately need to contact a lawyer or your local child support division and realize that even tax breaks are considered in child support calculations. Good luck with it all.
Just a note that filing first isnt how the IRS takes it, if he pushes it, and he makes more money than you, you will have to pay back any credit from the irs, Trust me, i had that same notion once. I hope however things work in your favor.

J., I have been divorced for 7 years. In my divorce decree it states I claim my son every odd and he claims him every even. My accountant has a copy of my divorce decree with our taxes. It doesn't matter how much you or your ex sees the child. Talk to the attorney that did your divorce. READ your divorce decree again, if it does not state exactly that unless you get your child so many days you can claim them, then he is wrong. Make a copy of what it says and give it to him as a reminder. Claim your child on the years you are suppose to and don't worry about what he is doing. He will be the one that gets in trouble not YOU! Good luck and stay strong! Don't let him push you around. Especially after you are married. --H. (now married mother of 4)

It's tough because the law says that the exemption goes to the custodial parent and it can come down to just a matter of days. However, the custodial parent can sign the exemption over to the other parent with Form 8332. In your case, if you can agree that you're the custodial parent, then he can sign the form each year that it's suppose to be your deduction or there's a line for future years. I would recommend that you get him to sign it for "all future even-numbered years (or odd-numbered if that's what it is.) Then you keep that form and file a copy of it with your tax return in the appropriate years. If you e-file, then just hang on to the copy with your records for that year. If he claims the exemption when he's not suppose to, then you claim it as well. The IRS will send you both a letter, but you can produce the form as evidence for your side.

Good luck.

Everyone else seems to read it that you were married and have a divorce decree. I read it as the two of you were never married, and therefore, you don't have the benefit of a divorce decree. Either way, I would still have him sign the IRS Form 8332 signing the exemption over to you every other year. Filing first gets you the efiling and the refund first, but he can still file a paper return and claim the exemption, resulting in an IRS letter for both of you, with you having to pay back your refund with interest if you lose. Keep your calendar, meanwhile, marking off the days (and hours if necessary) that you had your child with you. The IRS puts a lot of emphasis on contemporary written records as proof. The form is the best way to reduce arguments. Call me at Gallatin Valley Tax, ###-###-####, if you have more questions.


**Edit** Sorry Ladies... but Ive been there! One day WILL make the difference in tax filing and any judge will tell you so! Unless the custody order specifically states that you alternate years, the IRS law stands, even if it seems unfair. Your only guarantee is to get an agreement signed or take him to court!

First I have to say please don't substitute this site for real legal advice. You need an attorney. You'll have to file a motion to amend the original custody order to include addressing the tax issue. It's not likely the court will even hear the issue because taxes are already addressed in IRS tax law. The parent who had the child the majority of the year is lawfully entitled to claim her, even if it is by one day! That said, if you have the right to claim her this year and he claims her as well, the duplicate SS# will flag the IRS's system and they will contact you both to prove your case. There may not be much you can do except pleading your caseto your ex and hoping he will stick to his agreement!

Good luck!

My question is this is...Does the court order say you alternate years? If so then it really won't matter who had her more. If it states otherwise then he would be right. Go find a lawyer to have the matter fixed so that way there is no more conflict, cause in the end depending on a calander year he may always have her more. Lacy is also right, but do you want to take the chance?

Hello J.,

This is not formal legal advice, but I too share custody of kids and had to deal with the tax claiming issue. Luckily, we wrote it into our custody agreement the first go=round.

I think you should start by getting him to write it out/sign a statement for your plan and have it notarized. Then, you could probably get that added to your formal agreement just by sending it to the lawyers who handled things the first time. I'm not sure you'd need anything more fancy than that, as it's a pretty simple agreement. Since you've had problems with his compliance, you may want to spell out which years each of you gets to make the claim and consider if anything will change if the child goes to college.

Good luck

L. Zeman

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