@Hani92 wrote:
I was reading comments on this post, but the situation we have is slightly different so I couldn’t find the right answer. My husband lived with his ex in 2018 and they separated in December that year. They have two kids together and they were never married. After separation prior to any court order his ex filed taxes for 2018 and claimed both of the kids. My husband thought that he couldn’t do anything about it so he just filed taxes without claiming dependents. According to federal tax laws, they lived together with the kids and he had higher AGI so he would have the right to claim the kids. Could he amend his return for that year now or is that something that should be taken to court?
The first tiebreaker would be who had custody the greater number of nights. If he moved out December 30, he would have 364 days but the other parent would have 365. The higher AGI only comes into play as a tiebreaker if they had physical custody the exact same number of nights. This is theoretically possible, since they split at the end of the year, if they shared custody after the split, but would not be the case if the kids stayed with the mother while things were sorted out.
In the event the number of days was exactly equal, he could file an amended return and claim head of household with dependents or single with dependents. The IRS will send letters to both parents asking them to prove their claims. Could your husband prove he had physical custody of the children an equal number or greater number of nights than the other parent?
