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  1. #1
    Join Date
    Feb 2009
    Posts
    10

    Default IRS Pub 504: Need Clarification Because of Divorce Papers

    I have a 2 part question. I'm trying to find out if I have the right to claim my child since 2002, at the time of my divorce.

    #1 My original divorce papers say "Steven G. Theriot shall have the right to the tax exemption for the child, _______ through the year 2013." THat's all it says. According to the Pub 504 and 8832, it says that 3 things have to be stated in the papers. #2 below is not stated in these papers. Can I claim her because of this?

    Post-1984 decree or agreement. If the
    divorce decree or separation agreement
    went into effect after 1984 and before
    2009, the noncustodial parent can attach
    certain pages from the decree or
    agreement instead of Form 8332. To be
    able to do this, the decree or agreement
    must state all three of the following.

    1. The noncustodial parent can claim
    the child as a dependent without regard
    to any condition (such as payment of
    support).
    2. The other parent will not claim the
    child as a dependent.
    3. The years for which the claim is
    released.
    The noncustodial parent must attach
    all of the following pages from the
    decree or agreement.....

    #2 Also, he took me back to court for full custody in 2004 and lost. Everything was rewritten including visitation, child support, where we can live, etc. The above statement about him getting the tax exemption was NOT PUT BACK in the papers. Can I claim her based on those papers starting in 2004??

    I do understand I can "revoke the previous release" but I want to know if I could have claimed her all these years. Partly because I am behind on filing my tax returns and am filing several years next month.

    Thanks,

    Lynns

  2. #2
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: IRS Pub 504: Need Clarification Because of Divorce Papers

    Quote Quoting Lynns
    View Post
    I have a 2 part question. I'm trying to find out if I have the right to claim my child since 2002, at the time of my divorce.

    #1 My original divorce papers say "Steven G. Theriot shall have the right to the tax exemption for the child, _______ through the year 2013." THat's all it says. According to the Pub 504 and 8832, it says that 3 things have to be stated in the papers. #2 below is not stated in these papers. Can I claim her because of this?

    Post-1984 decree or agreement. If the
    divorce decree or separation agreement
    went into effect after 1984 and before
    2009, the noncustodial parent can attach
    certain pages from the decree or
    agreement instead of Form 8332. To be
    able to do this, the decree or agreement
    must state all three of the following.

    1. The noncustodial parent can claim
    the child as a dependent without regard
    to any condition (such as payment of
    support).
    2. The other parent will not claim the
    child as a dependent.
    3. The years for which the claim is
    released.
    The noncustodial parent must attach
    all of the following pages from the
    decree or agreement.....

    #2 Also, he took me back to court for full custody in 2004 and lost. Everything was rewritten including visitation, child support, where we can live, etc. The above statement about him getting the tax exemption was NOT PUT BACK in the papers. Can I claim her based on those papers starting in 2004??

    I do understand I can "revoke the previous release" but I want to know if I could have claimed her all these years. Partly because I am behind on filing my tax returns and am filing several years next month.

    Thanks,

    Lynns
    You have two separate issues:

    1) Would the IRS rule in your favor? - I think that one is iffy. Yes, number two is not specifically stated in your paperwork, but it is implied.

    2) Would you be found in contempt of court by the state court judge if you claimed the exemption? - That is a huge issue. Normally if a divorce decree is modified, and nothing is mentioned in the modification about a specific issue, then the original decree stands on that specific issue. Therefore, if the IRS rules in your favor, but the state court judge slams you, fines you and orders you to amend your returns, you are right back where you started, and worse off to boot.

    I will tell you that for 2009 tax returns and forward, the IRS will no longer accept divorce decrees. The IRS will only accept signed form 8332s from the custodial parent. Therefore, for 2009 tax returns and forward, the IRS would rule in your favor.

    However, that would not take away your problem with the state court judge.

    Consult with a family law attorney about your divorce decree and the 2004 modification.

  3. #3
    Join Date
    Feb 2009
    Posts
    10

    Default Re: IRS Pub 504: Need Clarification Because of Divorce Papers

    Thanks, that helps. Especially because of the modified papers. That part I didn't know.

    Lynns

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