Legal Question in Tax Law in Illinois

First, you should determine whether you signed any release of claimed exemptions for the children. Request a copy; perhaps you signed it as part of your dissolution of marriage. If the release is valid and applies to future tax filings, you should not claim the exemptions on future returns. Perhaps, there were other reasons for not complying with the release of claimed exemptions in past years, such as your ex-husband's non-compliance with other provisions of the dissolution of marriage, marital settlement agreement, etc. Regarding your previous tax returns, you should wait until it is certain that your ex has filed such returns. Discuss the matter with your tax preparer; you can contact the IRS regarding the issue. Filing amended returns for the applicable years should be avoided unless you must do so.

What you need to do, if anything, with respect to the returns for the past years is unclear. Generally, the custodial parent gets the exemption. Since your returns are apparently filed and in the system, when your ex files his delinquent tax returns, any question as to who is entitled to claim the children may trigger an IRS mini-audit and you'll have to deal with the situation as it unfolds. Prior to 2009 an order in a divorce decree was enough to substantiate a noncustodial parent's right to the exemption. Starting in 2009 Form 8332 is needed. You may wish to pull a copy of Form 8332 (check out www.irs.gov) and fill out the section to revoke any prior waiver of your right to the exemption. 2011 returns can't be filed until after the close of the tax year.