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Blended Families
Claiming Dependants?
Since his seperation, DH has been claiming one of his two kids on his federal taxes each year (3 years so far). It's not written in the CO but had been discussed so he'd thought he and BM were on the same page as far as each of them claiming one kid. This year his claim got flagged because BM claimed both kids. He asked her about this and she said she's been claiming both of them for the past 3 years! Somehow this didn't get flagged, even though DH was claiming one kid too so one kid got doubled up. BM is saying it's her "IRS right" to claim both kids.
DH will be contacting his lawyer and accountant today so we'll get some answers, but does anyone know if there are specific laws for this? I assume there is, with divorce being so common now, but couldn't find anything in my short search on the IRS website. Does anyone else have to deal with this?
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Re: Claiming Dependants?
Often it states in the CO who gets to claim the children. Some parents alternate years.
If he is the NCP- AND paying child support he gets to claim every other year or he claims one, she claims one. If no one pays CS and she is the CP she gets to claim them.
Sounds like you need to go back to court to get it in writing. The technical IRS rule is that whomever has the kids in custody more gets to claim but most judges recognize child support makes up for lack of physical custody and makes allowances.
I don't really know as I'm not from the US nor do I live there BUT I think I have read something on here about who the child lives with 51% of the time.
I could be totally wrong though.
As PPs said, IRS rules are wherever the child spends more than 50% of the time. But most COs are written to split every other year (ours is, DH just has to be current on CS as of Jan 1) or I have heard of just splitting it when there is an even number of kids. If there is nothing in the CO right now, IRS rules would likely apply to this year and any past years, but you should get it in writing for future years.
And an FYI from experience, have it in writing/the CO if BM still claims both kids in the future (and has them more than 50%) IRS would still side with her, they told us they don't care about COs. At that point you would have to take her to court for contempt. But most people aren't as gutsy to test the IRS as our BM is!
Ditto what PP said but I just wanted to add, if BM had been claiming both kids the past 3 years your return would have been flagged for claiming the other child. So I call BS on BM.
Usually whoever submits their claim first gets approved and then the other parent gets denied, so in the past you guys probably claimed first and hers got flagged so she had to alter it so that she could only claim the other child, if she files through an accountant they probably just made the change without even alerting her.
I claimed both kids because our divorce didn't stipulate who will claim the children. They are with me 95% of the time, so it made sense. My XH did ask to claim one of them for 2011, but told him he couldn't. He worked all of 1 month last year, so I doubt it would have made much of a difference to his bottom line anyway. IMO, the CP should claim the kids unless otherwise agreed upon. I have no idea what the IRS rules are though.
You can have it in your CO all you want, but the IRS rules supercede any CO. Sorry. Sure, you could file contempt charges against her for violating the CO, but my attorney said it doesn't hold much weight when the judge will just reference what the IRS would rule in that situation.
If she has them more than 50% of the time, she has the right to claim the children in the eyes of the IRS.
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This, plus the IRS might still give it to the CP because they don't have to follow the CO because that is a state civil order and they don't like to get involved in civil matters.
We never get to claim any of my 3 SKs even though BM doesn't work. Her DH gets to claim them since they live in his house.
Sorry, that's just how the cookie crumbles sometimes when you are the NCP.
This is all true. In fact, in many cases, if the Custodial Parent has not signed a waiver stipulating that he/she is ok with the NCP claiming the child, the claim can be bounced back as well.
I would be very careful about what you do next. She COULD infact, disput your tax claims over the last 3 years, since you do not have a CO stating that you get to claim one of the children.
Everything PP's said. Unfortunately "verbal" agreements don't hold much weight anymore, and whoever has the children 51% gets to claim them. I understand your frustration, because if the NCP is current on all CS payments and is an active role in the child's life, I think they should get to alternate years of claiming the child. I'm really sorry you are dealing with this.
On the plus side, your husband can still claim all medical expenses he's paid. We don't get to claim K for taxes, but we do get to claim the medical costs since we pay them. And we get the "donation" credit for clothes and toys that we donate to Goodwill. And the couple times my husband had to pay daycare for K, he got to claim it. I know those little deductions here and there don't add up to as much as getting to claim the child, but every little bit helps sometimes.
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