The following is of a bit of a confusing situation but I'll try and explain best I can.<p>My x-H's son's (OC) mother (OW) is employed and has full legal custody of OC. My x-H pays child support. He has no legal custody of OC, not even joint.<p>My x-H claimed OC as an exemption on his taxes. OW, who is a friend of mine, believes my x-H was not legally entitled to claim OC, as she has full custody. She is wanting to file and claim OC as an exemption. <p>According to the IRS Tax laws, who legally is entitled to claim OC???<p>
Additional Particulars:
OW and x-H never lived together and were never married.
OC lives with OW, x-H has OC every other week-end.<p>
Jo<p>[ March 06, 2002: Message edited by: Resilient ]</p>

It's my understanding (from my pre-divorce research) that the primary custodian has legal right to claim the deduction. I do believe that your xH *could* take the deduction with the primary custodian's permission (I think there is a form).

Thanks Rosie .....<p>.... x-H didn't have OW's permission. Rut roh .... [img]images/icons/smile.gif" border="0[/img] <p>Jo

I'm with Rosie.<p>I suggest that you suggest to OW to have her ask a tax accountant. I'm willing to bet that the advice will be that she should claim the child and write a letter to your XH that she is claiming him and that he is not entitled to. She should keep a copy of the letter in case the IRS asks questions.<p>Of course, this is predicated on an assumption that there is nothing in any legally binding custody papers that spells out which one of them gets to make the claim. For example, in my separation document, it specifies that I get to claim my son in odd numbered years.<p>Dave

Thank you, Dave!<p>Ummm, looks like somebody's gonna have to write a check to Uncle Sam ... lmao! Maybe even take a certain piece of jewelry back. lolololol<p>I'm dying here .... lol<p>I know it's not good to experience joy over someone's misfortune.... but but ... I can't help it! <p>Jo<p>[ March 06, 2002: Message edited by: Resilient ]</p>

Jo,
The non-custodial parent can claim an exemption for his child, provided:<p> He actually provided more than half of the child's support, and<p> The custodial parent signs a release of exemption, which the non-custodial parent must attach to his return. I can't the number of the form off-hand, but our ex-daughter-in-law signs one every year for our son to claim their children.<p> So....if your ex claimed the child as an exemption, 10 to 1, he either forged her signature on the form or else he claimed that lthe child lived with him, maybe so he could claim the Earned Income Credit if his income falls within the EIC range.<p> I used to work for IRS, and this sort of thing is a huge problem--costing the taxpayers millions.

The form is Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents (or a similar statement - such as a decree - to make the written declaration to release the exemption to the noncustodial parent). The noncustodial parent must attach this form to their return.<p>The parent who has custody of the child for the greater part of the year is generally treated as the parent who provides more than half of the child's support. <p>In order for your husband to claim this child he would have to prove that he contributed over half of the child's support (food, lodging, clothing, eductation, medical, etc.) and you would need to get a lot of this information from the custodial parent to determine total support. Any tax preparer would have a worksheet for determining support.<p>As always, it's best to check with a local experienced tax preparer who will get all of your information and can best advise you (and might suggest that you file an amended return at this point). <p>Best wishes,
JJ

Sorry....just realized it's your ex-H...guess he's going to have some explaining to do!<p>JJ

Most of the advice here is true. Half of the child's total support, Form 8332, etc. However, generally, the one who files first gets the claim, until it is straightened out. I don't suggest this, since it would be straightened out eventually, and only serves to slow things up. I just point it out as a tactic divorcees have used to hurt each other, and I think that innocents should be aware of this.<p>If your xH has provided massive amounts of support for his child, then he should speak with a tax lawyer or accountant, or both to get his due claim. <p>Note: In a situation like this, never claim your child on your W-4,as it can cost you big if you have to repay Uncle Sam.

Resilient<p>My XH and I signed Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents at the times of our divorce. <p>I released claim on even years and he released it on odd years.<p>It's worked out well.

hoping is right. A friend's ex filed and took their son as an exemption weeks before she did and she couldn't claim him that year.