Quick question...My ex is requesting that I let him file one of our daughters on his tax return. Reason being because he still owes from last year and is hoping that this will keep him out of the hole. I have never let him file either one of the girls. The way I see it they both live with me all year. Recently he went to a second shift job and has been seeing them a lot less. Also, he doesn't try to help out much with the extra stuff. I can get him to pay a doctor bill here and there...although per our divorce decree he should be paying 50% of all medical bills. I have had some people tell me that because we have two children that he should be able to claim one of them. Is this legal for him to do? Am I supposed to allow this? It says nothing in our divorce papers about this.

Thanks!

It is common to split the tax claims for the children. Some people split the kids (if there are two kids, each of them claim one child per year), or some people will claim all the kids every other year (if you had 1 child, or however many, 1 parent claims them 1 year, the other parent claims them the other year). If it isn't specified in your divorce decree, you need to work with him to let him take 1/2 of the deduction, whether that is let him claim one child each year, or whatever you work out.

I can see your reasoning if you're not getting him to pay his half of medical, etc. But it is common to split the deduction. If you can't work it out with him, you better get it modified to be spelled out in your decree. You don't want the IRS auditing you because you both claim one child in one year or something.

While I totally agree with the advice given.. reality is that if it's not specified in the decree the IRS sees it as the custodial parent getting the deduction. However, dad could take it back to court and it would not be a big stretch to expect a judge to give him the deduction every other year.

I was just wondering if there was anything legally binding me to allow him to claim one of the children.

My issue with it is that he does his minimal expected and nothing more. I appreciate that help don't get me wrong. BUT...If I am providing for all of the extra wants and the added needs that weren't there at the time of divorce when they were a newborn, now 8, and age 1, now 10, then I don't feel that he should even ask! He told me it was because he is behind in taxes and may lose his house because of it but I have bills to pay as well...some of which he should be helping me with. If I am not bugging the crap out of him for that help and have not taken his butt back to court for violation of the divorce decree then he cannot say a whole lot about me not allowing him to claim one of the kids. Not to mention that I have NEVER taken him back for a modification. This all has been by my own choice. I don't want to be the parents that are fighting all of the time. I also want my ex to be able to provide for our daughters when they are with him and be able to take them to do things.

So, unlike some ex-wives, I am not out to drain him of every extra penny he has. Since my husband started going through the custody thing over his son, I am more against the unnecessary proceedings that get taken to court. It is the petty stuff that is backing up the judicial system and why my husband doesn't have his final hearing until MARCH!!

Sorry...I am off of my soapbox now :)

Jen

Unless your divorce decree gives him the right to file then there is nothing legally binding at this point saying you have to allow him to file. In fact because there isn't if you allowed him to file he would technically have to get you to sign a form (sorry don't know what it's called or the number is right off hand). If you BOTH were to file on the children, eventually the IRS would catch it and likely start off asking you both to provide the legal documentation (decree) giving you the right to file and/or showing custody status. In that case he would be found in the wrong b/c again, without an order stating differently the IRS looks at the custodial parent as caring for the child/ren more than 50% of the time.

Yep, Suzy72 is right. Sorry I wasn't more clear. While it is common for people to split the deduction, if you don't have any order saying so, you have the upper hand because you have custody. You don't have to allow him to claim one child.

My decree specifically states that i get to claim both of my children. My ex decided he didn't like that and "informed" me he would be claiming one of them this year. My attorney told me that if he does, and I do also, he is the one who will get in trouble with the IRS because he doesn't have that right. And like Suzy said, there is a form that has to be signed by the custodial parent when you claim a dependent that doesn't live with you (even if your decree says you split the deduction). So if he decides to claim one child, he has to file that form with custodial parent (your) signature.

Here is how I try to get some people to look at it in allowing an ex to claim a child when they are even a bit reluctant. Now, some 'tax' people will argue with my logic, however, I stand by it (and btw... I am/was a CP)

An NCP pays child support... Let's say it's through pay garnishment.
They are taxed on the GROSS pay of their paycheck. At the end of the year their w2 shows their total GROSS amount. So now they are paying taxes, in essence twice on money that the CP doesn't have to claim on or for taxes at all.

Again unless it's court ordered the CP isn't required to allow the NCP to take the deduction but A. to make peace and B. to be fair a bit, really what harm is there? Besides the NCP can't claim EIC for the child even if they file for them because they don't meet the requirements.. however, the CP can still claim some portion. (a tax preparer could explain it a bit better).

This is how we do it.....my husband and I claim my step-daughter in the odd years her mom claims her in the even.....HOWEVER when we claim her in the odd years we check the box that says that she doesn't live with us....(she is with her mom 51% of the time and us 49% of the time) her mom still gets to claim head of household on her even in the years that we claim her...only if we check that box.......do you follow?
Also, when speaking to the IRS they state that whomever claims her first that year wins... meaning if for some reason mom wants to claim her daughter in our year if she does it before we file then mom gets her that year she doesn't break any IRS laws...however she will have violated the divorce decree...
To my way of thinking claiming the child/ren should be split or take turns with the years...yes. mom might have the child more than the NCP but the NCP still pays child support..
just my opinion from my experience

Well this is amazing but my daughter and her son's father would switch years and then finally came up with that they each do their taxes.(not filed yet) Whoever would get the higest return with claiming their son would be the one filing and then they would split the return. Now you have to trust someone to do this with them. I could never in a million years do this with my ex. He is not worthy of trust. Sad to say!
I know how much it costs to be the custodial parent and cs does not match what I pay by any means. I do all the work, you know the drill. I would just keep the deductions to myself or I have seen one parent pay you what it would cost for you to lose that deduction. If it is financially beneficial for him to do that then maybe you can suggest that. It is a legal and a common thing to do. Jen please do the private post again. I am not sure I wrote your e-mail address down right.

Another thing to remember also, like Suzy72 mentioned, is that while the NCP may take the deduction for the child (therefore lowering their tax obligations) they still can not take the EIC credit (which is what increases the refund to lower income families). Allowing the tax deduction won't net them near as much as the EIC the CP claims in most cases.

The name of the form the CP has to sign is Form 8332. It should be noted though, that if your divorce decree is issued after 1984 and the NCP is entitled to take the deduction in certain years according to that decree, the CP does not have to sign Form 8332. All the NCP has to do is attach a copy of the cover page of their decree listing the parties names, the page where it says they can take the deduction, and the signature page to their tax return. That's all the IRS requires if there is an existing decree that addresses the NCP being able to claim the tax deduction.

Look for Publication 501 on the IRS site to confirm this.

Well if it is not in the divorce decree or custody papers, it is something that you both can work out and there probably is not any hard or fast rule about how to resolve it. Some may say each parent claim one kid and others may say the custodial parent gets the deduction, or some parents who pay child support insist on the deductions. And if you want to claim them both, seek a modification of the support and custody decree to state that the primary custodial parent, you, can claim the children on taxes.