Can my former husband still claim the kids legally without having them stay there for over 6 months?

iadoredisney — Sat, 01 Jun 2019 07:31:39 GMT

I am divorced with 2 children. Their father has not seen them for over two years. Can he still claim them legally without having them stay there for over 6 months? The divorce paper says we are to go every other year, and that was agreed upon him being in their lives a great deal.

It's complicated. If the divorce papers so he can claim...

Hal_Al — Sat, 01 Jun 2019 07:31:42 GMT

It's complicated.

If the divorce papers so he can claim them; why are you even asking. Just abide by what you agreed to.

That said, the IRS doesn't care about the divorce papers. The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf

If you and the other parent file competing returns, the IRS will rule in your favor. His only remedy is thru the courts.

There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use:

There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

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Can my former husband still claim the kids legally without having them stay there for over 6 months?

It's complicated. If the divorce papers so he can claim...