Dear Tax Talk,
My question is regarding my boyfriend and his ex-wife. They are divorced with two daughters. His ex is a very difficult person to deal with, to say the least. She has taken him to court several times over the last five years. One of those times, she added that they will alternate the girls as tax-exempt on their tax returns. The judge granted this request.

For 2008, he was to claim his youngest daughter. But before my boyfriend could get his taxes done, his ex-wife claimed the two girls, claiming that she could do this because he was behind in his child support.

He called child support and his worker told him he wasn’t behind. I was looking on the Internet and I read that the parent who pays for more than 50 percent of the children’s expenses gets to claim the children as a tax-exempt. She provides more than 50 percent of their support, but they went to court to let him claim them too.

I also read that child support amounts presume that the parent receiving child support also claims the children as a tax exemption; thus, if you receive child support and you give up the exemption, you should really be getting more in monthly child support. Is this a Minnesota law? Is she in contempt of court for claiming both of the girls for 2008?
— Cara

Dear Cara,
While I’m not sure if she is in contempt of court, she definitely went back on your agreement. Generally, the IRS does not like to get involved in this bickering. If your husband goes to file his return electronically claiming the daughter, chances are it will get rejected. If he wants to file claiming his daughter, he’ll need to file on paper and attach some supporting paperwork.

The law says that a child will be treated as the qualifying child or qualifying relative of his or her noncustodial parent if all of the following apply.

What makes a qualifying child?
  1. The parents:
    1. Are divorced or legally separated under a decree of divorce or separate maintenance.
    2. Are separated under a written separation agreement.
    3. Or lived apart at all times during the last 6 months of the year.
  2. The child received over half of his or her support for the year from the parents.
  3. The child is in the custody of one or both parents for more than half of the year.
  4. For a post 1984 divorce:
    1. The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return.

Chances are the child meets the tests in items 1 through 3, but the ex-wife isn’t about to give the written declaration in item 4. In this case your husband can rely on the terms of the divorce decree. To be able to do this, the decree or agreement must state all three of the following.

The divorce decree must state
  1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
  2. The custodial parent will not claim the child as a dependent for the year.
  3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

If the divorce decree meets the foregoing tests he should attach all of the following pages of the decree or agreement to his or her return.

  • The cover page (write the other parent’s social security number on this page).
  • The pages that include all of the information identified in items 1 through 3 above.
  • The signature page with the other parent’s signature and the date of the agreement.

If you do all of this, you may eventually get your refund, but you’ll have to be patient and persistent.

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