Is it right for your ex husband to claim one of your children on his taxes even when they live with me?

Question

My daughters live with me all year except for 8 weeks in the summer, and he claimes one of my daughters. It would make a big difference in my refund if I claimed her. He had it done up in the divorce papers that he will always get to claim her. I was very young then, and thought that was the way everyone did it. It does not seem right for him to be able to do that since I am the one who takes care of them all year long, and he doesnt even see them but once a year, because he lives 2000 miles a way ( his choice) and I am the one that makes sure they have everything they need and want, and all he has to do throughout the year is write a check and sed it..........which is the bare minimum that he has to anyway. I could so a lot for my girls with that extra money!! What can I do??

Answer 1

Court decrees must meet very specific IRS tests for the non-custodial parent to get the exemption. If your decree doesn't meet those tests, you (the custodial parent) get the exemption.

You should have a lawyer or CPA review the decree and see if it meets the IRS requirements.

For the non-custodial parent to claim an exemption Post 1984 decrees MUST state the following:

1. The non-custodial parent can claim the child as a dependent without regard to any condition, such as payment of support.

2. The custodial parent will not claim the child as a dependent for the year.

3. The years for which the non-custodial parent, rather than the custodial parent, can claim the child as a dependent.

If the decree does not meet ALL of those requirements, the custodial parent can claim the exemption without regard to what the decree says to the contrary. A common error is tying the exemption to timely payment of child support. That kills the non-custodial parent's exemption as far as the IRS is concerned.

Answer 2

You need to follow what is spelled out in the divorce decree. If you knowingly try to claim a dependent you are not entitled to, you can get into a boatload of trouble. If you think it is unfair, you need to renegotiate the terms of the divorce, which will mean getitng the lawyers involved, court costs, etc - the costs may outweigh the benefits.

I have several clients who are divorced, but are still on good terms. They will figure out their tax returns different ways (1 parent claiming all children, other parent claiming all children, or splitting the children). They agree to do what is best overall and share the money. I'm not sure if this is something you would consider, but it is an option for some people.

Answer 3

First, one of the most important aspects of your question is the "all he does is send a check". Income taxes and tax breaks have to do with finances, not other parenting responsibilities, so if he is sending you pretty fat checks to pay for the girls' needs, he may have the right to claim your daughter financially.

Other than that, talk to an attorney to see if the original divorce papers can be ammended.

I don't think it's fair on your part, but legally, he probably has as much right to the positive aspects of parenting as you do, since he hasn't signed off on his parental rights and he's still sending you a check.

Answer 4

The laws are very specific and state that if the child lives with the custodial parent for more than 6 months out of the year, then that parent claims them on the taxes unless other wise agreed upon which doesn't seem to be the case.

Read your tax forms. The question it asks of anyone filing is "Does this child reside with you more than half the year? If yes, then claim.".


You are losing your own credit and should be able to go back and refile with him getting audited for the past claims to the child.

Answer 5

Well I'm not a tax expert or anything, but I did take a couple of tax classes. Anyhow, your husband was very clever on doing that. I have heard of many divorced dad's to put that on their divorce papers. The only thing I can think of is to have your husband write a letter saying that it is ok for you to claim her. Otherwise you would most likely have to get a lawyer or tax adviser!

Answer 6

If the divorce agreement specifies that he can claim her, then he can unless you get a court ruling to the contrary.

If there isn't anything in the divorce papers or any other court papers, then the custodial parent can claim the child unless they give the other parent written permission to claim the child.

Answer 7

If the divorce decree states that he gets to claim the child, you are out of luck unless you can legally get it changes. Either that or he would have to sign a form that is attached to your return (can't remember the number) where he states that you get to claim her.

Sorry but if he pays child support, that is supporting her. I'm on your side but the law isn't.

Talk to your lawyer to see if anything can be done about the amount of money you get and about claiming your daughter. Don't claim her without court approval - you will be in deep "dodo" if you do.

Answer 8

This guy thinks he's doing you a "favor" by paying $400/month for 2 kids?! no way.. have the state enforce child support. This is fair for all parties.

Answer 9

If you signed the papers then he has the right to claim them however......file "head of household" and that gives you a bigger break. Also depending on your daughters ages, if they work..they can file their own tax returns, and basically get back every penny that they pay in taxes, and give the money to you, or keep it themselves. Hope this helps.

John :)

Answer 10

NO! But I am thinking since it is written that way in your divorce papers there is not much you can do. Hire a lawyer to change that ASAP so you can claim her next year.