Family Law

Question: I have been divorced for a few years. The divorce decree says I get to claim my daughter as a dependent and my ex is supposed to claim my son. The problem is that my ex beats me to the tax man every year and claims both children. What can I do to stop this?

Answer: You've learned that a divorce decree is typically binding only on the parties that agree to it -- and the Internal Revenue Service wasn't one of those parties.

The best way to protect your right to claim your daughter as a dependent is to have your ex-husband sign IRS Form 8332 waiving his right to claim her -- and you'll need to fill one out releasing your claim to your son. You need to fill out a separate form for each child.

Ideally, this would have been handled as part of your divorce.

"It really surprises me that divorce attorneys don't automatically include Form 8332 as one of the documents to be signed whenever child support comes into play," Rosenberg said.

If you can't get your ex-husband to cooperate, you're not out of options. If your daughter lived with you for more than half the year and you provided more than half her support for the year, and can prove both facts, Rosenberg recommends you "go ahead and file your tax return on paper, the old-fashioned way."

The IRS will challenge you, but if you can defend your position, you can prevail.

On the other hand, if you only provided support but your daughter did not sleep under your roof for at least 183 days (or otherwise met the "living with you" standard outlined in IRS Publication 501), you will lose the exemption.

"This is where getting that Form 8332 signed at the time of the divorce is so critical," Rosenberg said. "Without it, in a dispute, you lose. Sorry."

From the LA Times.