Can I claim my child as a dependent? 3 Answers as of January 18, 2011

I have a divorce decree that states my ex and I will alternate years claiming our child on taxes. I have sole custody, and the child lives with me 100 percent of the time, with no visitation with her dad. He pays a minimal amount of child support. The IRS rules state that the custodial parent has the right to claim the child every year unless the right is waived by filling out Form 8332 (which I haven't done), and even then can change revoke it. Can I claim child every year given this info without being in violation, even though my divorce papers say every other year?

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Givner & Kaye
Givner & Kaye | Bruce Givner
You should not violate the agreement with your spouse.
Answer Applies to: California
Replied: 1/18/2011
Steven J. Fromm
Steven J. Fromm | Steven J. Fromm & Associates, P.C.
You must follow the divorce decree. If you fail to follow the decree you would be in violation of the agreement. Your husband could then bring an action against you for such breach. Your solution here is to get the decree modified, so that you can claim your children. As an aside, your husband may not be entitled to claim the dependency exemption under the facts you state, so he may have no objection in revising the decree.
Answer Applies to: Pennsylvania
Replied: 1/12/2011
LT Pepper Law
LT Pepper Law | Luke T. Pepper
Despite the decree, you probably need the IRS form you reference in place. Since you have custody you can justify to the IRS.
Answer Applies to: Pennsylvania
Replied: 1/11/2011
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