Federal tax laws say that the parent with whom the child resides for a longer period of time during the taxable year, may claim the child as a dependent. If both parents have equal time with the child, then the parent with the higher adjusted gross income may claim the child. But the parent entitled to claim the child may sign a form allowing the other parent to claim the child. This rule applies if parents are:
· Divorced,
· Legally separated, or
· Live apart at all times during the last six months of the calendar year.
This rule also applies if the parents were never married, and live apart at all times during the last six months of the calendar year.
See the federal law on parents who live apart, here.
A parent entitled to claim a child may allow the other parent to claim the child
If a parent is entitled to claim a child as a dependent under the above regulation, the parent may release her claim, and allow the other parent to claim the child as a dependent.
To allow the other, noncustodial parent to claim the child as a dependent, the parent releasing her claim must file Form 8332 with the IRS. Form 8332, along with instructions for filling it out, are available here. A parent who has previously released his claim may also use Form 8332 to revoke his release of his claim. If he does this, he will again be allowed to claim the child as a dependent.
A court may order a parent to fill out Form 8332
If the child lives with one parent for a majority of the year (and thus that parent is entitled under federal law to claim the child as a dependent) the court may order the custodial parent to submit Form 8332 to the IRS, and allow the noncustodial parent to claim the child as a dependent. Although federal law does not specifically allow state courts to order this, most state courts that have considered the issue have ruled that state courts have the authority to order parents to file Form 8332. In 1991, in Wilson v. Wilson, an Oklahoma appellate court specifically held that Oklahoma courts have the power to order a custodial parent to allow the noncustodial parent to claim a child as a dependent. Since then, Oklahoma courts have continued to hold that Oklahoma state courts have the authority to order parents to file Form 8332.
However, in order for the noncustodial parent to claim a child as a dependent, it’s not enough for the parent to simply send a copy of the divorce decree to the IRS. The custodial parent must file Form 8332. If the custodial parent does not send Form 8332 to the IRS, the IRS will still allow the custodial parent to claim the child as a dependent, no matter what the state court order says. (If the divorce decree went into effect before 2008, the IRS may allow the noncustodial parent to claim the child as a dependent by simply sending the divorce decree.)
However, if a state court orders a parent to file Form 8332 with the IRS, and the parent does not do so, the court may hold the parent in contempt for disobeying a court order. Contempt of court is a crime, and is punishable by up to six months in jail, and/or a fine of up to $500. Lamb v. Lamb has held specifically that an Oklahoma court may hold a parent in contempt for not filing Form 8332, if the court had previously ordered the parent to file Form 8332.
Need help with tax issues after a divorce? Contact the Persaud Law Office.
The Persaud Law Office has represented many clients in child custody cases. We can advise you of your tax rights after a divorce. We have also represented many clients in contempt proceedings. If a court has ordered your former spouse to file Form 8332, and your ex-spouse has not done so, we may help you also. Also, if your ex-spouse is trying to hold you in contempt, we may also represent you. If you have questions, feel free to contact us today.
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