Can my ex claim our children as dependents if he isn't main carer?

[Pinkcow11]

Our children live out of the USA yet he had it put in out divorce agreement that he can claim them as dependents, can he do this even if they don't spend half of the year with him? One child wasn't born in the USA, the other 2 were. I can't claim them myself as we don't have this in my country but I was still wondering if he is allowed to claim them or not? Thanks

[Carl]

First, understand that federal laws must be followed when it comes to divorced or separated parents of children. What your divorce decree or separation agreement may say holds absolutely no weight with the IRS. You must follow federal laws. Period.

In order to claim your children as your dependents there are several requirements that "MUST" be met.

- Child must have lived in your household for at least 6 months (183 days) of the tax year.

- The child must not have provided more than half of their own support for the entire tax year.

That's just two I can recall off the top of my head. But take note that child support DOES NOT count for the child providing their own support, and it does not count for the payer of that child support either.

See IRS Publication 504 at https://www.irs.gov/pub/irs-pdf/p504.pdf for more detailed information. You can also use the table at https://apps.irs.gov/app/vita/content/globalmedia/table_3_children_of_divorced_separated_4012.pdf if that helps simplify things.

[Anonymous]

there are two issues one is legal - what was or was not specified in the divorce papers and where the divorce took place. we do not answer legal questions outside of tax laws. The other is tax.

from a tax standpoint it would appear you are the custodial parent since you seem to be saying they spend more than 1/2 the year with you.

as for care/support all that is required is whether one or both provide more than 50%. this would seem to be the case.

for the noncustodial parent to claim under US tax laws normally the custodial parent would need to provide the noncustodial parent form 8332 which the noncustodial parent would have to file with their tax return. There is an exception for a divorce before 2009. then the divorce papers may satisfy the flying requirements in lieu of form 8332

you would have to talk to a lawyer about the legal issues you would face if the divorce was after 2008 and he requested the form but you failed to provide it.   

[xmasbaby0]

The IRS says the custodial parent is the one who can claim the children as dependents.  That would be the parent with whom they spend at least 183 nights in a tax year.  It sounds like you are the custodial parent, so no, your ex should not be claiming them.

[Opus 17]

This is a standard situation, it only seems more complicated because the children are not living in the US.

First, your ex may not claim a child living outside the US as a dependent unless that child is a US citizen or permanent resident and has a Social Security number or green card, no matter if you follow the  other rules described.

Then, these are the rules that apply to a child who is a US citizen or permanent resident. The only parent who is automatically entitled to claim the children as dependents is the parent where the children live more than half the nights of the year. That is the custodial parent in IRS terminology. The IRS does not follow court orders or “50-50 custody“, only where the children live more than half the nights of the year.

The custodial parent may transfer the dependent claim to the noncustodial parent by giving the noncustodial parent a signed form 8332, that specifies which years the non-custodial parent may claim the child or children.  This form allows the noncustodial parent to claim the $2000 or $500 dependent tax credit, but it does not allow the noncustodial parent to use the children to qualify for head of household status, earned income credit, or the child care credit. These tax benefits always stay with the custodial parent and can never be waived, transferred, or shared. This is true even if the custodial parent (you) is not a US taxpayer.

What you are supposed to do is to give the other parent a signed form 8332 allowing them to claim the children as dependents (only the children who have Social Security numbers or green cards).  The other parent is then supposed to indicate on their tax return that the children do not live with them more than half the nights of the year and they are only claiming a dependent because of form 8332. The other parent will be required to mail the IRS the original signed form 8332, either attached to their tax return, or separately with a cover letter after e-filing.

If the other parent has been claiming the children as if they lived with him all year in the US, without form 8332, that is incorrect, and he may be claiming excess tax benefits that he is not entitled to.  However, because you do not file a US tax return, there is no automatic mechanism for this problem to be discovered. You could file a fraud report with the IRS if you wanted to.  To make sure that you do everything that is legally correct, you should be sending your ex a signed copy of form 8332 for each year that your ex is allowed to claim one or more of your children as dependents.  If your ex breaks the law After that, it’s not your problem, unless you want to get your ex in trouble.

[AmeliesUncle]

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@Opus 17 wrote:

First, your ex may not claim a child living outside the US as a dependent unless that child is a US citizen or permanent resident and has a Social Security number or green card,

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Citizens or Residents of Mexico and Canada, as well as those with ITINs may still be able to be claimed as dependents.  However, the benefits of those kinds of dependents may be much more limited.

[Opus 17]

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@AmeliesUncle wrote:

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@Opus 17 wrote:

First, your ex may not claim a child living outside the US as a dependent unless that child is a US citizen or permanent resident and has a Social Security number or green card,

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Citizens or Residents of Mexico and Canada, as well as those with ITINs may still be able to be claimed as dependents.  However, the benefits of those kinds of dependents may be much more limited.

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You are correct about Mexico and Canada, I forgot that.  However, you are incorrect about ITINs.  While the software might let you claim a dependent who has an ITIN but who does not live in the US, it is not allowed under the law.  See Table 5 on page 11 here.

https://www.irs.gov/pub/irs-pdf/p501.pdf

To claim a dependent, the person must be a US citizen, US resident alien, US national, or a resident of Canada or Mexico. 

[AmeliesUncle]

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@Opus 17 wrote:

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@AmeliesUncle wrote:

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@Opus 17 wrote:

First, your ex may not claim a child living outside the US as a dependent unless that child is a US citizen or permanent resident and has a Social Security number or green card,

---

Citizens or Residents of Mexico and Canada, as well as those with ITINs may still be able to be claimed as dependents.  However, the benefits of those kinds of dependents may be much more limited.

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However, you are incorrect about ITINs.  While the software might let you claim a dependent who has an ITIN but who does not live in the US, it is not allowed under the law.  See Table 5 on page 11 here.

https://www.irs.gov/pub/irs-pdf/p501.pdf

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Maybe I'm missing it, but where do you see that the child needs a SSN if they are outside of the US?

[Opus 17]

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@AmeliesUncle wrote:

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@Opus 17 wrote:

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@AmeliesUncle wrote:

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@Opus 17 wrote:

First, your ex may not claim a child living outside the US as a dependent unless that child is a US citizen or permanent resident and has a Social Security number or green card,

---

Citizens or Residents of Mexico and Canada, as well as those with ITINs may still be able to be claimed as dependents.  However, the benefits of those kinds of dependents may be much more limited.

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However, you are incorrect about ITINs.  While the software might let you claim a dependent who has an ITIN but who does not live in the US, it is not allowed under the law.  See Table 5 on page 11 here.

https://www.irs.gov/pub/irs-pdf/p501.pdf

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Maybe I'm missing it, but where do you see that the child needs a SSN if they are outside of the US?

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The child needs to be a US citizen, resident alien, or US national, or resident of Mexico or Canada.

1. US citizen is eligible for an SSN, and the taxpayer should never get an ITIN for a child who is eligible for an SSN
2. Resident alien means one of two things;
   1. Has a green card, making them a "permanent resident" even if they are not physically living in the US (and gives them an SSN), or
   2. lived in the US more than half the year and meets the substantial presence test. 

A child who is not a US citizen, not a green card holder, not a resident of Mexico or Canada, and does not meet the substantial presence test, can't be claimed as a dependent.  As a shortcut, therefore we can say that a child living outside the US, Mexico or Canada can't be claimed as a dependent unless they have an SSN (because all children who could be claimed are eligible for SSNs).

Getting back to the topic, if this taxpayer's home country is Canada or Mexico, the non-custodial US parent can claim the children if there is a form 8332.  Child #1 and child #2 will be claimed with their SSNs and child #3 will need an ITIN.  If the taxpayer's home country is anywhere else, child #1 and child #2 can be claimed using their SSNs if the custodial parent gives the US non-custodial parent a form 8332, but the US parent can never claim child #3 unless the parents apply for and receive US citizenship for the child, or the child lives in the US with the US parent and passes the substantial presence test. 

[AmeliesUncle]

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@Opus 17 wrote:

As a shortcut, therefore we can say that a child living outside the US, Mexico or Canada can't be claimed as a dependent unless they have an SSN (because all children who could be claimed are eligible for SSNs).

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No.  Residents and Citizens of Mexico and Canada that are not in the United States usually do NOT qualify for a Social Security Number.  They would have an ITIN, and can be claimed as a dependent with that ITIN.

[Opus 17]

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@AmeliesUncle wrote:

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@Opus 17 wrote:

As a shortcut, therefore we can say that a child living outside the US, Mexico or Canada can't be claimed as a dependent unless they have an SSN (because all children who could be claimed are eligible for SSNs).

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No.  Residents and Citizens of Mexico and Canada that are not in the United States usually do NOT qualify for a Social Security Number.  They would have an ITIN, and can be claimed as a dependent with that ITIN.

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That's what I said.  Please re-read.

A child--who is living outside the US, Canada or Mexico--can't be claimed as a dependent unless they are a US citizen or US permanent resident and hence eligible for an SSN.

A citizen of Canada or Mexico, living outside the US, Canada and Mexico, does not qualify, per publication 501 table 5.  The dependent must be a US citizen, resident or resident of Canada or Mexico. It does not say citizen of Mexico residing abroad or citizen of Canada residing abroad, only residents of Canada or Mexico. 

See also 26 USC §152(b)(3)(A) "The term “dependent” does not include an individual who is not a citizen or national of the United States unless such individual is a resident of the United States or a country contiguous to the United States."

[AmeliesUncle]

Okay, after re-reading that last statement I now understand that last comment, so I apologize about that one. 

But all of your prior comments asserted a SSN was needed regardless of where you lived, which is wrong.  And I think you are just complicating things by mentioning a SSN at all because it has no direct bearing on the matter Rather than a "shortcut", it seems like the long way around to complicate things.

The requirement is Citizenship and/or Residency.  The type of ID number just follows whatever type of Citizenship or Residency applies in the situation, but has no direct bearing on the matter.