Can I claim my son on my taxes? Without his mothers consent?

Question

I pay child support. I have joint legal custody w/ visitation. Normally my sons mom would claim him but this year she didn't work...( or what work she does have pays cash under the table) She lives with her boyfriend and he does help with his care but i know he can't claim him. I would love to claim him and even willing to split the cash but she wont believe that i will. Any suggestions

Answer 1

Judy's right, the answers given so far are not really addressing your problem. I'll do it a little differently. I'll list the three people who could possibly claim your son as a dependant and then tell you why they can or can't.

Before anyone can claim the boy, there is one hurdle that must be jumped: they have to pass all of the tests for either "qualifying child" or "qualifying relative" set of rules.

YOU:

You fail the qualifying child set becaues he doesn't live with you.
You sound like you pass the qualifying relative set, but only if you can prove that you provided more than half of his support, extremely difficult if child support is all you contributed.

THE BOY'S MOTHER:

She passes on the qualifying child set (easily). Her income has nothing to do with it.

THE MOTHER'S BOYFRIEND:

He fails the qualifying child set because the boy is no relation to him.
He passes the qualifying relative set assuming that your son lived in HIS home for the entire year, not the mother's home. If the residence isn't his, he fails this one, too.

Anyone who fails both sets of rules can never claim the boy regardless of any other facts or circumstances.

If two people are eligible to claim your son, the tie-breaker rules kick in. If the tie is between you and the mother, you lose simply because the boy doesn't live with you. If the tie is between you and the boyfriend, you win because the tie always goes to the parent. If the tie is between the mother and boyfriend, the mother wins for the same reason.

So the answer is no, you're not going to get the exemption.

It is possible that if the boyfriend claims him on his 1040, and you claim him on yours, and the mother files no form, the tie will be given to you. Keep in mind that if this is what happens, both of you are commiting tax fraud if you make the claim knowing that you don't pass the tests.

(Your claim isn't worth very much to you, though. Even if you could get the exemption, you're not going to qualify for the child tax credit or the additional child tax credit. You also won't be able to take the earned income credit. You fail the tests on these three for the same reason, he doesn't live with you.)

Answer 2

He must be living with you at the end of the year and you must be providing at least 1/2 of the support.
The boyfriend can claim him as a dependant.
READ the rules and definitions of a dependant.
The dependant or child does not have to be related to you to claim them as a dependant.
They have to have lived with you more than 1/2 of the time and they have to have lived with you at the end of the year.
They must not claim themselves as a dependant (if they file) and no one else must be claiming them either.
The person claiming them must also have contributed to half of their support thru out the year.
I let my boyfriend claim my daughter one year because he made more money than I did that year. I gave him what it was that he normally would have gotten and kept the rest.
Him claiming her as a dependant was legal according to the IRS's definition of a dependant.
Pay for 1/2 hour of an accountants time and find out for sure. If your son is with you for 1/2 of the year and at the end of the year (and if everyone agrees and she won't be a ***** and claim otherwise when she gets mad at you but then cash under the table is an IRS offense too...so two can play that game) then you should be able to claim him.
So I would consult the accountant and ask the mother. Tell her you would like to claim him and that he needs to be living with you on Dec 31. Tell her you will split the money with her if she agrees. I would even do the asking with the boyfriend present. Everything needs to be up front and grown up like, after all you are all ADULTS and not teenagers, right?

Answer 3

If he lives with his mom, no you can't claim him without her permission no matter how much child support you pay, or whether she claims him or not.

And as usual with this question, you've gotten a lot of wrong or partially wrong answers. MukatA was doing OK until he said the boyfriend could claim him - that was true a few years ago, but not now, since your son is the qualifying child of your ex whether she has any income to claim him on or not. The rest of the answers so far are just plain wrong.

Answer 4

Here's the deal. To be able to claim another person as a dependent, you absolutely must be able to show (with receipts for items paid out) that you provided more than half of that person's support for the year. Support not only includes food and such, but providing the home and medical items/services, and so on. A non-custodial parent usually doesn't have access to those kinds of things, and you can bet the IRS will be looking to make sure they're there.

Answer 5

"The child will be treated as the qualifying child of the noncustodial parent if all four of the following statements are true.
* The parents:
Are divorced or legally separated under a decree of divorce or separate maintenance,
Are separated under a written separation agreement, or
Lived apart at all times during the last 6 months of the year.
*The child received over half of his or her support for the year from the parents.
*The child is in the custody of one or both parents for more than half of the year.
*The following statement is true.
The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return."

So you may be eligible only if you get approval from your son's mom. Also the boyfriend may be eligible to claim your son under "Qualifying Relative" if the child lives with him for all the year as a member of household.

Answer 6

Talk to your accountant. If she didn't work then you should be allowed to use him since she has nothing to file anyway.

Answer 7

NO!