i think whoever gets their claim in first will get the refund, and if it's fraudulent, they will catch up to them later. get your forms in asap. if she beats you to it, call the IRS. she won't get away with it.

what bi said and if irs questions you will have to prove residency of child. been there done that.

it is usually written into the child support order if you have one.

I called IRS and asked because of what happen last year. who ever claims first get the refund but if you paper file and not e file the irs will take a look at both returns. and both partyies will have to show prove. if she files first and get the money later she will have to repay all child taxs plus more

All this "first to file, wins" stuff is rather interesting.
It doesn't work that way.

OP, does your DH have 60% of overnights? And it wasn't addressed in the CO? If that's the case, then, yes, DH can claim him.

One of the ways to prove residency with the IRS is the address listed with the school or with a daycare - you will have to get a letter (on letterhead) from the office stating such information. Usually pretty easy to get. Also a letter from the doctors office stating the address of residence is another way. I just did all this, we were cleared as being the ones with residency. Also, filing first puts you in a better position overall, she would have to bring it to their attention or file on paper for them to contact you. Anything over 182.5 days per year (Over 50% of time) you are entitled to claim according to the IRS. You will also need to provide a copy of the CO to the IRS in most cases. If she fights it (assuming you initially get the claim) they will send you a form letter telling you what to provide to them.

My DH went through this EXACT situation the first year his ex and he filed taxes separately. He has the child more (approx 70% of the time) as BM has EOW schedule with alternating holidays. Even though he told BM before either of them filed that he was claiming the child for tax purposes as he is the one she LIVES with not visits BM filed with the child on her's. BM e-fled before DH did. BM got the refund. DH filed but had to wait since the childs SS# had already been used. He had to send copies of the custody order as well as school records showing his address as the child's address. BM got her money quickly as you would on a normal return. DH had to wait about 8 months for the IRS to decide he was the right parent to get the $. The IRS did send the full amount after that long investiagtion process. They then back-charged BM with the amount she should not have gotten, plus penalties and interest. I do not know if the IRS ever got their money back or not from her, it may be racking up for all we know since she has not worked since that fraudulent year. Hope that helps!

Sharing my newfound info here about the IRS AND divorce decrees and hope it helps anyone who needs it. Pull up a chair.

Stupid me insisted on sharing when my ex husband (non custodial parent) and I divorced in 2001. Our decree states "petitioner (me) is ordered to claim all the children beginning in tax year 2001 and the parties will alternate years thereafter."

We did so until year two when we decided he claim one and I claim the others since he caused an unforeseen dispute tax. Our verbal agreement worked well for four yrs and kept us out of court to resolve it. Out of the blue he unilaterally decided to go back to alternating years which I warned him was no longer workable for us. He said he didn't care (he's greedy and needed more money). I comply thinking I have to due to the threat of contempt if I don't. So I go to efile and claim all the kids as he instructed and it was kicked back because he claimed one. I mailed my forms in with the decree and got my refund six weeks later. I also called him and said fix it!! This was your idea, remember???? Oh that was an accident, I'll fix it was his reply-right!!

I rock along for 9 mos thinking he amended his taxes and then I get an IRS letter again saying we double claimed. That's it! I was done!! I got an atty and in mediation dumbass refuses to discuss my petition to claim all the kids all future years because he kept screwing up a good thing by saying this is a Federal issue and this court doesn't have jurisdiction. My atty AND the mediator said fine, he just screwed himself. Since he says Federal law prevails that means you are entitled to the exemptions of all the kids since they've always lived with you being the CP and also because the decree language doesn't meet the IRS strict guidelines in conforming to the substance of Form 8332 which btw, our decree makes no mention of this form. One requirement is it must state which years he can claim without regard to any condition (i.e being late on CS payments) AND it also must state a written declaration that I will not claim the kids in the years that he will be claiming them. So I sent him due notice with copies of Form 8332 that I signed saying I revoke his claim for all future years one yr prior to me using the form with my taxes. I kept my certified mail receipt showing he signed for it as instructed. I dropped my suit in court without prejudice after my ex said its a federal issue.

I began using that form the next two yrs and quickly filed as soon as possible claiming all the kids. Each year I attached with my taxes a copy (one per child) of that original form I sent him and I got the refund. Apparently he mailed the decree in after his efile was rejected because I claimed all the kids. He was refused the refund even with the decree. Serves him right!!!

He took me to court after that and I played the same card he did using his previous answer to my first petition where he said its a Federal issue. Again the atty and mediator told him sorry, the IRS rules are in her favor. They tried to argue breach of contract as well. My atty and the mediator said he'd lose that one too since he breached it first causing us to change up our agreement the 2nd yr after divorce. At my atty's urging and his atty's agreement the ex's suit was dismissed WITH prejudice this time. 'With prejudice' means he cannot take me to court again, not even small claims court, regarding an IRS dispute with the exception of tax court if he chooses. Even then, tax court rulings cannot be appealed. I thought my ex's head was going to twist off when he was told sorry, no dice dude.

For tax year 2012, the ex beat me to filing and my efile was rejected due to the kids being claimed already. I mailed off my taxes with copies of the original Form 8332 he received years ago. I am waiting for my check to arrive. Apparently that Form 8332 is golden because the decree has been rejected when he tries to use it.

I've been researching US Tax Court case law and the rulings are VERY specific as far as adhering to their rules. Several rulings that I read where the decree was rejected are: If an attorney signs the decree and not the parties, it is rejected in tax court. If the decree states the non-CP is current on his child support he is entitled to the exemptions in listed years, but even if he is current and all the language fits for Form 8332 the tax court denies him the refund because it CANNOT be based on a condition. If the decree makes no mention of who can claim then the custodial parent wins. If the decree does not state the person who is giving up their right to claim WILL NOT claim in specified years, it is rejected. If the decree doesn't state the kids names or the names of who will and will not claim which years then it is rejected. If the decree just says the parties will alternate years without saying WHICH years each party gets then the decree is rejected.
The Tax Court does mention in many rulings that "while we sympathize with the Petitioner and believe his ex violated the decree (or he fully complied with requested conditions), that is not a remedy this court can satisfy. Petitioners remedy in that regard must be sought in District Court."

I think I've hit the big high lights but if you are in doubt google IRS requirements for child exemptions and go to special provision for divorced parents. Pre 1985, post 1985-2008 and post 2009 rules apply to those situations so make sure you read the right rules that apply to when your decree was finalized.

I hope this helps someone who like me could've used the info earlier.