Can ex claim child if behind on child support

Taxpayer and her ex have two children (boy and girl) and each get to claim one child every year since 2011, unless ex is behind more than $560 by December 31st each year, according to their legal document. Ex is behind more than the $560 but told Taxpayer he just filed claiming his son for 2020 anyway.

Would the best option be to have Taxpayer go ahead and file without claiming her son, only claiming her daughter whom she's entitled to so she can get her refund which she would like to get as soon as possible (although it'll be late February since she gets EIC) , and then file an amended return later with all the legal paperwork showing she should be entitled to claim her son as well since ex is behind in child support?

Thanks for any help.

If she needs a refund now, it makes the most sense to e-file, and then I guess amend to add the dependent.

Also, as of a few years ago the IRS no longer cares about the divorce or separation agreement.
They default to where the kid spent the most time, going so far as to determine where they laid their head down each night.
Whoever has more than 50% "custody" of the kid, gets to claim them for that tax year.
At least that is my understanding.

I try to stay out of these child custody issues.
Maybe the ex is behind due to COVID, maybe they will get caught up after they get a refund.

Isn't much your client can do after ex filed the tax return.

When push comes to shove, the IRS will disregard the legal agreement as to child support clause. If the ex applies 100% of the additional refund from claiming the child, I see nothing wrong with that.

The fact that he is paying child support suggests this is not a 50/50 custodial issue. If the child did not live with him over half the year, she would have needed for past years and needs to sign an 8332 for 2020 for him to claim the child even with the language in the divorce agreement. Has she been doing this for past years, or has either child stayed with him more than half the year in any of the years? Hopefully whoever did his return did their due diligence. This is how preparer audits get started.

If both children lived with her more than half the year and she did not sign the 8332, I would prepare the return with both children on there. If it rejects, then she will need to mail the return. You can go ahead and include documentation for the credits, etc., with the return as you know it may already be a problem.

I personally would only claim one child. The fees to untangle this could easily be more than the back support owing.

I agree with Yellowdog . If you meet all the requirements to claim both children (support ,where they lived ,not signed the 8332 etc.) you should consider claiming both as dependents .

Although your ex said the ex has already E-Filed his return claiming the son, it has not as yet been transmitted to IRS due to the delay in the tax filing season until mid February recently announced . There is a good chance if you prioritize preparing her return very soon by claiming both kids your return might be accepted by IRS first .

There is another benefit by having your client claim both kids and that is you will be eligible for an additional $1,100 EIP payment on your son .Despite the fact the ex husband probably already received this benefit as an advance, the wife will be eligible for the RECOVERY rebate on the 2020 tax return (assuming all eligibility requirements are met including AGI requirements ) This would be in addition to the $2,000 child tax credit you are probably eligible for .

I personally would only claim one child. The fees to untangle this could easily be more than the back support owing.

Agreed. I had a situation last year. Client, the dad, had physical custody of over 50% for both children. They were supposed to have shared custody. They had agreed that they would rotate the girls. Ex wife did her own return and claimed both! I could have had him claim both when we paper filed, but why get in the middle of a war between the exes?

Cathy's Taxes wrote :
"But why get in the middle of a war between the exes"

Why .....because you represent your client and want to get the largest refund allowed under the law . I have had a number of these over the years and never had to speak to the ex I don't represent . I had several instances where my client did not want to pursue and about the same number where my client wanted to pursue that ultimately was beneficial . Messy yes but it was in the best interest for my client .

As minimum I believe we should communicate to the client discuss the options and then let them make an informed decision . Because of the substantial increase in tax benefits over the last few years (child tax credit, earned income credit, dependent care and now the Recovery Rebate Credit you can be talking about thousands of dollars )

My fees are very nominal compared to the tax benefit benefit my client receives . If it does not make economic sense to the client then it's never pursued however that doesn't happen often.

When this couple divorced, I carefully explained the rules to both of them. The client who remained with me I'd aware that he can claim both children but he's decided to go with their agreement because he wants to get along with her. Besides, in a future year, she may end up
with more days for both girls

Agree with the others, but would also add you may want to mention to your client that they may have recourse outside of the tax context (i.e. judicial enforcement of the agreement), but you need to be careful how you frame it to your client, and if you're not a lawyer (or, in my opinion, even if you are) avoid giving any sort of advice about that process.

I agree with much of the advice in this thread...

1) As the preparer - I'm interested in Custody and support. If the shoe fits, claim it.
2) Also as the preparer, (like atxsaltax wrote) I would advise the client that by going by the tax code alone and ignoring the agreement, the client risks judicial enforcement or contempt (or whatever, I'm not a lawyer).

To solve your specific issue. It seems that the ex has violated the agreement. I would have the client ask their lawyer what to do. That's not a tax question - that's a legal question.