Can my soon to be ex husband claim one of our two children on his taxes when they both live with me and have all year?

Brittany - posted on 02/17/2012 ( 13 moms have responded )

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My soon to be ex is highly upset bc im not gonna let him claim one of the children on his taxes. we seperated in aug of last year, and are in the process of getting divorced. Im struggling to take care of the children bc of his lack of concern for my job, I missed several days at work and also ended up having to take them in with me. I am depending on the tax money to provide for us for a while, until I can get unemployment or a job or go back to school. He does pay child support but that hasnt always been regular. When we first seperated he barley gave me 60 a month for both kids. He is threating to burn me in court and says that im just being greedy when in actually im just trying to provide a home for my kids. He would just go blow it on him self if he did claim one of them. He gets them one to two days per week but it doesnt equal out to even 48 hours. I just need some advice on what to do until we go to court. Thank you in advance!!

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Elisha - posted on 02/20/2012

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What I was talking about with the new law.. is that if your court papers say the mom can claim the kid but the dad has the kids for over 50% of the time and can prove it the IRS will allow the dad to claim the kids. If the mother fought it the IRS would back the father. The law has nothing to do with child support, the IRS still allows states to confiscate refunds for back due child support.



In this case you were married until August, therefor each parent supported the child for those 8 months. The mother only soley supported the child for the last 4 months. Either paret could claim the child. Whoever can prove they supported the children for the majority of the time would have the right to claim the child this year.

Elisha - posted on 02/19/2012

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You guys lived together over 6 months of the year he legally has every right to claim them as you do. the comment saying if it is in court papers the IRS will step in is wrong. they just made a new law that a if parent can pass a residency test the cotpapers mean nothing. i know that sucks but it is the law. -Certified Tax Preparer and own my own tax business in Missouri.

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Lacye - posted on 03/17/2012

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This is what my husband's lawyer told hubby.



If BM (You) has a job and the children live with her, father can not claim the children. If BM has had a job that particular year and can file taxes, she claims children. If BM did not have a job for that particular year and cannot file taxes because of that, the father (doesn't matter if there is no custody agreement yet) can file for the taxes. Now he can have it put in the papers that he can file every other year or every year you don't have a job, but that is it. Hubby contacted the IRS and they confirmed the same thing. Hope this helped.

Arrynne - posted on 03/15/2012

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I left my ex in July 2010, we fought over who got to claim our daughter on their taxes (we lived together for 6 months and she lived exclusively with me for 6 months). When I called the Revenue Agency I was told that we had to divide the time shared in half, so that gave him 3 months and me 3 months, with my extra 6 months added on I have 9 months to his 3 months. Therefore I got to claim my daughter.

Mandy - posted on 02/20/2012

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File first!!!! Be the first to file and do it pronto! Since both of you have had the child(ren) equal amounts of the year, you both have the right to file. But only ONE of you can since you're separated. So, be the first to file. THEN, if he files and tries to claim the kids, the IRS will come back and tell him he can't do it because that child has already been claimed. If he goes to H&R Block or uses TurboTax, both will catch it before he even files.

Brittany - posted on 02/19/2012

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keli: no we havent went to court yet but we are getting ready to, I go to meet a lawyer on the 29th.



I also had my aunt call her tax guy and talk with him about my situation and he said that as long as I can prove when my ex moved out, and prove that I have had the children with me since that point that I had every right to claim them both. Either way I have no sympathy him, at all, he has caused way to many issues and one of those including me loosing my job over a month ago. So i will have to use every dime to live off of until I get something established.

Tinker1987 - posted on 02/19/2012

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have you guys gone to court over custody. or do you figure it out on your own?i would suggest going to court so you have that under your belt. and it states how often you have the kids in your care. if you have them more then your ex then i would think just you are entittled too claiming. Its normally who is living in your household with you. if the kids were always with him in another household. the majority of the time you couldnt claim them. but i would go to court he may think its greedy but its tough making ends meat being a single mother.

Kay - posted on 02/19/2012

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I don't know that Elisha was referring to garnishing support. It seems more like even if the papers say that you are the custodial parent, if the other parent can establish residency (I.e., that the children lived in the same household with them for half of the year), they have the right to claim the children, same as you.



The IRS does not step in, regardless. Your local agency requisitions it from the refund. The IRS doesn't handle child support, past, present, or future.

Faye - posted on 02/19/2012

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OK, Elisha a question for you. Past the separation year, in Brittany's case 2011, with this new rule can or will the IRS, take dad's refund for the past child support?



When the ex owes $200 worth of child support, can or will the IRS take his refund to help pay the child support that he is in arrears for? How about $1200, $2200 or $3200? At what point does the IRS step in and "help" mom out?



The reason I ask is that I have in the past received from the IRS (thorough my state's child support agency) a small part of his IRS refund (the larger part he was "missing" went to his older child support case.) I just want to understand this new IRS rule.



The advise I gave Brittany was based on my past experience. If my advise is flawed then I will stop giving that advise. I was divorced in 2005 so when I received his IRS refund in 2009 for the 2008 tax year, was I correct to assume it was for the child support he owed my kids that at the time was more than $3200?

Faye - posted on 02/18/2012

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And if there are any court papers, the IRS will seize his refund (if any) to give it to you for the child support!

Brittany - posted on 02/17/2012

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thats what i was thinking but I just dont want to do anything to jepordize my situation.

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