How to File a Motion for Claiming Dependants After Divorce

By Angie Gambone

Portrait of father and son

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If your divorce agreement does not say anything about who gets to claim the children as dependents, then typically the custodial parent gets to do this pursuant to federal tax law. However, some divorce agreements allow a noncustodial parent to claim the children as long as he is current in his child support. If the custodial parent interferes with this right, you can file a motion with the court so that a judge will force your ex to allow you to claim your children as dependents. Filing a motion is relatively simple.

Federal Tax Law and Dependents

Under the Internal Revenue Code, a parent can claim a child as a deduction for tax purposes if that child has lived with the parent for more than six months out of a year. With divorced parents, the custodial parent typically cares for the children more than six months per year. Therefore, if your divorce agreement does not provide for an alternate arrangement, most custodial parents will be permitted to claim the children as deductions every tax year. It is important to understand that if two parents do not communicate or agree and both of them claim the same child or children as a dependent, this will generate an audit by the Internal Revenue Service.

Divorce Agreements and Child Deductions

Sometimes, especially when a noncustodial parent is paying a large amount of child support, a divorce agreement will include a provision that allows the noncustodial parent to claim the children as a tax deduction. If the divorce agreement is not conditional and allows the noncustodial parent to claim the children no matter what, the noncustodial parent may be able to claim the children and submit the divorce agreement as proof. However, if the divorce decree went into effect after 2008, IRS Form 8332, executed by the custodial parent, is required; copies of a decree or agreement will not be accepted as proof. Form 8332 indicates that the custodial parent does not object to allowing the noncustodial parent to claim the deduction.

Conditional Divorce Agreements

Oftentimes a divorce agreement will state that a noncustodial parent can claim the children as dependents provided that he is current on his child support in any given tax year. This "provided that" language makes this agreement conditional. If a divorce agreement is conditional with respect to tax dependents, then the IRS will require the noncustodial parent to submit IRS Form 8332. Since the IRS cannot check for arrears, the custodial parent's execution of the form is considered proof of current child support.

Enforcement Motion

If a custodial parent refuses to sign form 8332, the noncustodial parent must file a motion with the court to enforce this right. The motion paperwork should include the original divorce agreement as well as proof that you are current on your child support obligation. You must serve the custodial parent with the motion by either certified mail or personal service. The court will send you a notice with your hearing date. During the hearing, you will go in front of a judge and explain your side of the story. The judge will make a decision as to which parent gets to claim the children for tax deduction purposes.