When Can the Non-Custodial Parent Attach a Divorce Decree to Get Tax Exemption?

March 24, 2009

divorce-decreeMany non-custodial parents think that they can get the child tax exemption that they are entitled to (based on I.R.C. § 152(e)2)) pursuant to their divorce decree by simply attaching the divorce decree to their tax return. People try this use the divorce decree in lieu of IRS form 8332 because they are either hesitant or feel unable to have that form filled out and signed by the custodial parent.

Unfortunately, this does not work. As accountant Louis J. Cercone, Jr. points out, even when a non-custodial parent can take a tax exemption pursuant to a divorce decree,  the Internal Revenue Code only permits him (or her) to do so if the custodial parent fills out Form 8332 or signs a letter with the following information contained in it:

  1. The name of the child to which an exemption is released;
  2. The year for which the exemption is released to the non-custodial parent;
  3. A signature, date of signature, & social security number for the custodial parent; and
  4. the name and social security number of the non-custodial parent to whom the exemption is released.

Without either form 8332 or a letter signed by the custodial parent with the aforementioned elements, a non-custodial parent cannot get the exemption he or she is entitled to according to the divorce decree. The divorce decree, which is not signed by the custodial parent, will not suffice.

For any other legal advice on matrimonial or family law issues, please call our office for information.

Picture courtesy of cityofcyn.


One Response to “When Can the Non-Custodial Parent Attach a Divorce Decree to Get Tax Exemption?”

  1. Tax Lawyer Says:

    I’ve been included in taxes for longer then I care to acknowledge, both on the individualized side (all my working life-time!!) and from a legal viewpoint since passing the bar and following tax law. I’ve provided a lot of advice and corrected a lot of wrongs, and I must say that what you’ve posted makes impeccable sense. Please uphold the good work – the more people know the better they’ll be armed to cope with the tax man, and that’s what it’s all about.

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