Question

Our divorce decree states that my ex-spouse can claim one of our children each year, yet I pay 100% of their support. Can I ignore the divorce decree and claim both of my children on my return?

Answer

If you don’t follow the divorce decree, claiming dependent children outside the parameters of your divorce decree, your ex-spouse might have a legal claim against you. This is a matter of legal interpretation and beyond the scope of the help we can offer you.

Assuming you are the custodial parent, you must release your claim to a dependency exemption for the children who live with you. You’ll do this for the noncustodial parent to claim your children. You’d qualify to claim them if both of these apply:

  • You don’t release the claim to the dependency exemption.
  • Your children meet the all requirements to qualify as divorce dependents.

If you’ve already released your right to claim your children, you can revoke the release. Do this by providing your ex-spouse a completed copy of Form 8332, Part III. If you can’t provide a copy of the revocation to your ex-spouse, you must at least make a reasonable effort to do so. The revocation won’t be effective until the tax year after the year you provide the revoke release.

Your ex-spouse might have cause to bring legal action against you if one of these is true:

  • You refuse to sign a release for a dependency exemption you were required to sign under your divorce decree.
  • You revoke a release you were legally obligated to give your spouse under a divorce decree.

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