Divorce and Claiming the Kids at Tax Season

Updated on October 22, 2010
S.G. asks from Midland, MI
24 answers

My husband and I are going through a divorce, right not we dont have any custody into the courts. I however have had the kids since March, when I left him, and he has only had 3 over night visits with them, his choice. Tomorrow I go in to fill out paperwork for a new job, my first for this year, I had a baby and health issues and stuff. I dont receive any child support so when I fill out my tax papers I want to claim at least 3 to get the money now. I should mention I have 3 kids, all are his. I dont want to be screwed when I file my taxes next January and end up owing money cause I claimed 3 now. Who gets the deductions of the kids when filing taxes? He is a semi-dead beat dad, calls and shows up and sends money when its convient for him, which isnt very often. I have filed for full legal and physical and he isnt going to fight me for it. So anyway who claims the kids in January, and if its me and he does then what do I do...thanks!!!!!

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So What Happened?

thanks everyone! I was gonna ask my lawyer but I feel like Im calling her a few times a week with questions! I put 2 down for my deductions and will see how it goes!

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answers from Charleston on

I went throught the same thing. Who ever the Child lives with the most through the year is who claims the child.



answers from Boston on

if you have full legal and physical custody then you claim them. I know lots of people rotate but this is generally w/ joint custody.

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answers from Wichita on

make sure it's in the divorce decree! I work for a tax firm and we've got 2 clients right now who's taxes were rejected because the other parent filed first and filed with the children as their dependents. One had miscommunicated with her ex over who filed for what kid (they have 4 and 2 are still dependents) and the other was filing for his granddaughter, who lived with him and his son all year, and the mother paid zero child support. However, the divorce decree stated that they alternate years on who gets the child for tax purposes and it was her year, even though the child didnt live with her and she didnt pay for support.

1 mom found this helpful


answers from Houston on

If he didn't provide 50% or more of their support in 2010, you'll likely get full tax claim rights. However, it will change once custody and visitation are established. My advice is to do your taxes the very minute you can...don't delay and give him a chance to file first. "Possession" is 9/10 of the law.

Whatever is decided in court, ensure that 2010 is spelled out in addition to subsequent years.

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answers from Grand Rapids on

It can get tricky. Right now they live with you and you have them the majority fo the year, so you would claim them. if you want to protect that right to claim them and to never allow him to claim them, when you draw up your divorce papers have the lawyers place who claims them under the property section of your divorce. When my husband was divorced he didn't know that's what they did, and he claims them. When the ex came after us because she wante to claim them, she was told no, because it was under the property settlement and that couldn't be changed. the ex just wanted more free money, as she already pays no taxes, and just wanted the government to pay her more.

and after the divroce is finalized, ALWAYS keep a copy of it handy. You will want to make up several copies. We have had to send a copy in to the IRS several times for it to be verified we can claim my stepson. not sure if his mom tried to claim him or not.l

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answers from Detroit on

S. ~
The custodial parent has the right to claim the children. Right now, it is assumed that you already have custody since you have them. You should get it in your agreement, though, to protect yourself. There is an allowance for the father to claim them if he has paid more than half of their support for the year, but for him to do it the mother would have to fill out a form. However, some non-custodial parents will claim them on their taxes whether they're allowed or not, so if he files first and claims them, then you file and claim, you may have problems.
My husband's ex had physical custody, earned about $12,000/year, my husband paid about $15,000/yr in child support and should have been able to claim them, but since she had custody she claimed them. There are no tax breaks for the father when he pays child support. He's taxed on the income he makes, no break for paying out. For me, I had custody of my son, even though nothing was ever in writing. Once the court ordered child support, they assumed I had custody. My ex wanted to claim my son, but he never paid alot of support and since I had custody, I claimed him.



answers from Detroit on

From my understanding to be considered your full dependents they only need to be "primarily" living with you. Which in court terms means spending 183 nights with you. My husband and his ex-wife have joint custody and each only claim their child every other year (year is divided into 182 nights for one parent and 183 for the other switching every year). If your kids spend one more night than half the year with you, you're all set. Good luck!



answers from Detroit on

Per the law in the state of Michigan it is the custodial parent unless other wise written in the divorce papers. Most courts in Michigan will not allow you to write it where you split the kids for claiming them on taxes or every other year. On Federal taxes you must sign a form allowing the non custodial parent to claim the children even if it is written in the divorce papers. If that form is signed you CAN NOT claim the child on your state forms no matter what state the ex lives in. The state will then question when you claim them every other year and hold your return till you send in the divorce papers every time. I know all of this because I have been divorced twice once out of state where the courts papers were every other year if he was current on support and once in Michigan.



answers from Cincinnati on

The parent who has physical custody of the children claims them.


answers from Bakersfield on

You just have to prove that they were living with you for more than 6 months out of the year.



answers from Washington DC on

As for filling out your W-2 tomorrow, put 2. One for yourself and 1 child. Since its towards the end of the year, it won't make that big of a difference. Then make sure that the divorce decree states who claims the kids. After January, you can adjust the W-2 based on the divorce agreement.


answers from Jacksonville on

Who gets to claim the children is determined by the court. Make sure your petition includes a request to claim the children as dependents for tax purposes. Some courts will throw in some "standard" language to cover this issues, some won't.... but you want to be sure that your final order (Decree of Divorce) specifies that you get to claim them.

Once you have that paper in hand, signed by the judge, then you are free and clear. He can always claim them as dependents on his taxes when he files(he can "claim" whatever he wants to, just like anybody else can), but when his file gets pulled for an audit b/c you have BOTH claimed the same children, he will be charged with Fraud when you show the papers from the court awarding you the legal right to claim them.



answers from St. Louis on

If you look on the w-4's it will answer a lot of these questions. You get to claim them as long as they live with you for more then 50% of the year, so you should win that battle. When you get your final decree, it will be whoever has custody of them. I agree with everyone else though, try to get them in as early as possible. If there is any issue, be prepared to show that they lived with you most of the year. You are also able to claim head of household with your new status.



answers from Dallas on

I would talk with your lawyer before you do anything to get yourself in trouble. Typically, whoever the children live with claims the children. That is how the IRS sees it. However, the court usually decides and the court orders are what should be followed. When my ex and I divorced he filed and we split the return then he was suppose to claim the kids every year even though they live with me. If the divorce isn't gonna be finalized by the end of the year just make sure that you file as soon as possible. The IRS is most likely going to check into things if you both claim the kids. You do have the upper hand with no court orders and the kids living with you.



answers from Detroit on

You have to make sure it is written in your divorce papers that you get to claim the kids and have custodial custody of the kids. Stand firm on this cause he will claim them and get the money at end of year and IRS WILL come after you. If it is in divorce papers before it goes to court then you have smooth sailing. Get in touch with your attorney now!


answers from Seattle on

It stipulates in my DH's divorce decree who gets to claim the children...they have joint custody and 2 kids, so they split them up and they each claim one.

Seeing how he is not paying any child support, I think you should get to claim all 3...whatever you do I would make sure it's written into your final divorce decree/parenting plan, so there can be no denying what is what!



answers from Lansing on

Whomever has full physical custody can claim the tax credit. If you were to have joint physical custody then it would be prorated dependent on how many days out of the year you have the kids. If you both claim the children then you will both be audited, in which case you will then be required to provide a lot of documentation (and I mean a lot) to support your claim. I went through that the first year with my daughter and I had to have utility bills for the year, dr records showing my address, mortgage payment documentation, daycare receipts, bank statements, stuff had to be notorized, etc. It was horrible. (I should add that this was back in 1998). Best of luck to you!



answers from Grand Forks on

you did the right thing. my lawyer told me whoever is the custodial parent claims the babies (i'll always call 'em babies regardless of age!). i filed for my son last year & my ex had a fit, threatening to report me for tax fraud, blah, blah, blah. so i askd my atty & he said i did exactly what i was supposed to do & won't be questioned by the IRS. you're doing good. i'm sorry about your divorce. good luck w/your new job! :)


answers from Dover on

Should be the persons that has the kids unless other arrangements are agreed upon. If nothing is in writing and your soon to be ex files taxes before you do, you could have a problem when you go to file your taxes.


answers from Killeen on

Whoever has the kids for most of the fiscal year is the one who claims them. Be sure to file first, and if you're unable to, be prepared to present documentation proving the children have been with you for the majority of the year.

Good luck!



answers from Detroit on

Make sure you file first.



answers from Tulsa on

Whoever has custody of the children gets to claim them on their taxes as Dependants. He will get some tax breaks if he pays child support. If he is working they may just have his employers take it out of his pay and they turn it in to be sent to you by your state. Your attorney or an accountant is really who should be answering this question though. The laws are vastly different from state to state.



answers from Dallas on

From what I understand, if you have them for more than 6 months out of the year and you are the full time parent during this time, you get to claim them. If he files and claims them, you need to mail yours in. Also call the IRS and tell them the situation. They will send both of you paperwork asking to prove who provided for the kids the majority of the time. They will need to see a lease with the kids name, daycare payments, etc.. I have done this twice with my ex and he is now paying the IRS back.



answers from Charlotte on


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