8332 new twist

[Hahn1040]

We all know that for a divorce in 2012, the divorce decree cannot stipulate that a certain parent is entitled to take the exemption for a specific child.  the custodial parent trumps the divorce degree.

I have one that the divorce decree requires the custodial parent to sign the 8332 for two out of the four children.

I just found out about this part of the divorce degree this past summer when the father took the custodial parent to court to force her to sign the 8332 for one of the children for 2015.  It was well past April 15 and my client's returns had been filed.  It is further complicated that mother and her five children live with her mother who provides pretty much all of the support for all.  The grandmother  (also my client) has been claiming this child.  The grandmother has been filling HH with two of the children and the mother Single with the other 3.  Grandmother's income is $100,000+ ; mother is about $20,000.  Grandmother owns the house.  

MY questions:

•  can the divorce degree require that the custodial parent sign the 8332?  I have never seen this addressed.
• should I amend the grandmother's return to remove the child for 2015?  or wait and see if she gets a letter from the IRS?

thanks so much for your thoughts on this.

Laura

 

[Gail in Virginia]

What happened when the father took the custodial parent to court - did the judge say the mother had to sign the 8332?

[Hahn1040]

I told her that she needed to get an attorney.  I could not tell her if she could refuse to sign it or not.  She did not get an attorney.

Apparently the judge sided with the father:  she told me that she signed it.  And wrote on the page that she "signed it under duress."

[Terry D EA]

It sounds as if the custodial parent was bullied into signing the 8332. None of my research has returned anything regarding giving the courts jurisdiction over the IRS with this issue. Signing the form under duress may or may not come into play. it all depends on how far the custodial parent wants to go with this. From the OP, you state the grandmother has claimed the child and therefore she has no recourse or options as she is not the custodial or non-custodial parent. If the father now claims the child with the signed form 8332 attached, and the return is electronically filed, it should be rejected due to the child's SS# being used on another return. The father has no choice but to paper file. For your client (the grandmother), you must remember you have to advise them they are required to file an accurate tax return and therefore the return must be amended. If they refuse to amend, advise them of the consequences. Of course, your client will have to payback some money.

 

[Bart]

I do not see this as the mother being forced to sign the 8332 under duress.  A divorce decree is negotiated.  If the mother agreed to sign the 8332 I would guess that she got some other consideration which benefited her.

[Jack from Ohio]

This is all a legal matter, not a tax matter.  As tax professionals, we should not be giving out legal advice.  The IRS does not care about all the court dramas.  Refer her back to her lawyer and file or amend as the documents are presented to you.

It IS a legal matter.

[DANRVAN]

On ‎09‎/‎23‎/‎2016 at 3:17 PM, Hahn1040 said:

Apparently the judge sided with the father:  she told me that she signed it.  And wrote on the page that she "signed it under duress."

Looks like the judge was following the directives of the divorce papers, so her choices were to sign or be in contempt of court.

The bottom line is she signed the form so the dependents go to her ex.

[SaraEA]

I believe it was handled by the appropriate legal forum.  Divorce decree says she will sign, she did not, ex-spouse took her to court for contempt.  Judge says sign, and she did.  End of story.

I've seen this happen multiple times, but I've never seen the ex-spouse press contempt charges.  Usually it's too expensive to return to court.

[NECPA in NEBRASKA]

I know of  a case where the ex refused to sign the 8332 and was forced to sign by the judge in the court room or face contempt.