My ex-husband owes a lot of back pay for child support. If his new wife filed..?

Question

taxes only under her name, can she claim our children? He usually claims 2 of our kids though they live with me or do they have to file joint?

He has permission to claim them. Its part of a deal our attorneys worked out so I get more $ for support. I know...Stupid me. I just want to make sure she cant claim our kids by filing single because if she can she will. They are both money hungry.

For your information "Magic"...if you had read my question correctly this was a TAX question and wasnt because I care what his wife can file on her taxes I didnt ask for your opinion regarding my feelings toward her. The question I asked was "Can she claim my kids"? If she cant and he has to claim them than his taxes will be levied and they will go towards child support since he is over $20,000.00 owing backpay. I have three kids who are suffering because of their dead beat dad. Please get all the facts straight before you start insulting people.

Answer 1

If his name is not on the form, I don't believe she is allowed to claim your children. If your divorce decree states he is allowed to claim two of the children, then he can file separately or they have to file jointly in order to claim them.

Answer 2

While the rules say that a stepchild can be a qualifying child, that would only work if the child or children lived with her for over half the year. The rules for divorced or separated parents that let him claim the children do not extend to her claiming them. If they file a joint return then the children would be claimed as dependents on the joint return.

Since it's part of your written divorce agreement that he can claim two of them, then if the wording meets all the requirements, he can, and the people telling you here that he can't are WRONG. That would override your right as custodial parent to claim them.

Good luck.

Answer 3

First of all, if they file separately, then no, she cannot claim them. The court papers allow HIM to claim them on HIS tax return despite being the noncustodial parent. Unless they file a joint return she cannot claim them. Despite what everyone said here, you can claim them if he does not. Because he has first priority, you would want to get a signed 8332 from him releasing his claim. Precidence goes to the court order (him) first, the custodial parent (you) second. No one else can claim them unless they provide more than half the kids' support and they lived with that person for more than half the year, neither of which she did. And if they file jointly with an injured spouse allocation, he has to claim your children on his portion of the tax liability and refund.

Double check the court order. Many stipulate that the noncustodial parent can claim a child as long as they are CURRENT on their child support payments. He may not be able to claim them at all until he gets that $20,000 paid off. And if he has been behind for several years, then you may be able to go back and amend prior year returns to claim the children. Just be prepared to provide the IRS with a copy of the divorce decree and how much he was behind in child support at the end of that tax year.

Answer 4

Listen folks... She has signed a waiver and it's a stipulated agreement in their legal documents. He is very much allowed to claim them. If he is married then he is probably going to file his taxes as "Married Filing Joint", which he is also allowed to do. So, essentially she is also claiming the children if that's how you'd like to look at it. Nothing illegal or wrong about that. :o) Doesn't matter if he has zero income...and his wife does. He is still allowed to claim the children EVEN IF they don't reside with him more than half of the year.
This is something you agreed to. The IRS will be happy to tell you the same thing. Their policies/laws regarding this matter clearly outline this situation b/c it's practiced very often.

Nevertheless, what they do on their taxes is truly none of your business. You made an agreement that is made every day in our family law courts. Sounds to me as if you're simply jealeous of his life with his "new" wife or you truly wouldn't concern yourself with this. As long as he is supporting the children and being a responsible and good father, you need to focus on your own life and get out of theirs.
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ADDITION: Bottom line legally here is that what I said above is legally correct. IF they are filing taxes together and HE owes arrears in any amount, the court CAN issue a judgement and essentially place a lien on his tax return. Thing here is this... SHE can file a motion (Spousal Relief) that allows them to garnish ONLY his portion of any monetary return. Therefore, if he is NOT working and contributing to their income yet they are filing jointly, the return of any monies would be legally hers and they won't garnish it to pay his arrears.

I certainly DO NOT agree with his irresponsibility in supporting his children by any means, but what YOU need to do is simply file a motion to enforce the order. It should cost you a small filing fee. He will be brought to court and face a judge. In that case his butt would be in "Deep" for claiming his children and NOT providing for their support.
Nevertheless, do NOT attempt to claim them until and unless you file a motion to change that which is currently stipulated in your agreement. I'm just letting you know for your own legal protection.

Answer 5

If she files only under her name, conversely he ha sto file only under his name. You should hope that they do. "Married Filing Seperate" is the absolute worst tax catagory that a couple can file under. When that is done, the IRS and the State tax people (from whatever state you live in) tend to think that the married couple has something to hide... and if there is ONE thing in this country that you DO NOT F--- WITH, and that's their money. They, however, aren't required by law to file a joint return.

You'll probably have to contact the IRS about the ex claiming your children (However, since the children live with you, if you claim them then the ex is committing tax fraud (and that's serious bidness!!)

Answer 6

If he owes child support, I assume YOU have custody. Unless the divorce decree specifically allows him to claim the children, the custodial parent has that right. If he has the right to claim them, you can't claim them even if he doesn't. You shouldn't care if his new wife wants to claim them, only if YOU can.

Mr Taco is mistaken on one point. If you claim the children, you don't have to report that someone else is trying to claim them. This is one of the things the IRS computer will catch as soon as they receive the returns.

Answer 7

There is a couple of things that I noticed (1) if the children live with you; you should be the one claiming the children unless you signed a waiver giving your ex permission to claim them.
In that case, new wife will not be able to claim the children.

If the couple files jointly, the IRS possibly may take the tax and give it to you. The new wife should file injured spouse so her portion will not be taken.
Hope this helps!

Answer 8

He is in arrears. Thus he has violated the Agreement. You claim the kids then. The IRS only cares about who they live with. And IF he has papers to prove he should claim them...he'll have to file.

Answer 9

Wait. Don't YOU claim your children? They can't be claimed on more than one tax report. If you are in custody of them, and presume you are if he owes child support, then YOU should be reporting them as dependents. If they are, too, then you should report them to the IRS. They are breaking the law.

Answer 10

If he claims the kids and they live with you. Then this might be the luckiest day of your life because now he has broken federal tax law which is more of a ***** than family court. File for a hearing and request his this years taxes next week. See what he produces. Then give him hell. If they file together see if you can go after her pay check since they are now one.

Its what my ex would do to me..