Child tax credit

[Kashtonp20]

So my fiancé and I plan to get married at the beginning of 2022. I will not be working the year of 2022 due to needing to be home with our children full time, my fiancé is not their biological father BUT they live with us all year around, when we file after the year of 2022 will he be able to claim my children as dependents? He will be paying all of our bills as well as primarily taking care of all of my children’s financial needs.  

[Carl]

yes and no.

When you file your 2022 tax return you will most likely be filing a joint return. Any dependents are claimed on that joint return, even if only one of the taxpayers on that joint return is the legal parent/guardian of those dependents.

The above is assuming the biological father has no right to claim and does not claim their dependents on his own tax return.

[Kashtonp20]

Yes that is correct! He does not have rights to claim them. As of right now he is not in the picture and when he is I have agreed to share 10% of whatever money I receive for them so, he would not try and claim them on his return.

[DoninGA]

As stated you will probably be eligible for the child tax credit on your 2022 tax return that is filed during calendar year 2023.

However, if the children are claimed as dependents on his 2021 tax return, filed in 2022, using the Qualifying Relative rules, they must have lived in his home for one year and he must have provided over one half of their support for the year among the other requirements.  He cannot claim the child tax credit on his 2021 tax return since the children are not biologically his but he can claim the Other Dependent Tax Credit for them at $500 for each dependent.

To be a Qualifying Relative -

1. The person cannot be your qualifying child or the qualifying child of any other taxpayer. A child is not the qualifying child of any other taxpayer if the child's parent (or any other person for whom the child is defined as a qualifying child) is not required to file an income tax return or files an income tax return only to get a refund on income tax withheld.
2. The person either (a) must be related to you or (b) must live with you all year as a member of your household.
3. The person's gross income for the year must be less than $4,300 (social security does not count) in 2021
4. You must provide more than half of the person's total support for the year.
5. The person must be a U.S. citizen or a U.S., Canada, or Mexico resident for some part of the year.
6. The person must not file a joint return with their spouse.

[Opus 17]

A stepparent has the same legal rights to claim a child as a dependent as a biological parent, even if the step parent files a separate tax return. This relationship continues under the tax code even if you get divorced later on.

For the definition of “qualifying child“ dependent, as long as the child is under age 18, or is a full-time student under age 24, the key deciding factor is where the child lives more than half the nights of the year.  As long as the children live more than half the nights of the year with their stepfather, the stepfather may claim them as dependents regardless of whether he files a joint return with you or files as married filing separately.  If the two of you do file as married filing separately for some reason, then either one of you may claim the children as dependents.  If you can’t agree, the first tiebreaker would be whichever parent the children lived with the greater number of nights, and if they lived with both parents an equal number of nights, the second tiebreaker is whichever parent has a higher taxable income.

Incidentally, as I was writing the above answer, it occurred to me that you may have at least one other misconception regarding your 2022 tax situation.  Spouses may always file a joint return even if one spouse did not work, and married filing jointly is almost always better than married filing separately, because the tax rates are higher and many deductions are eliminated or reduced when filing separately.

[Opus 17]

For 2021, if you are not married, your fiancé has absolutely no legal position to claim your children as dependents if you file a tax return for any reason—unless your income is less than $12,400 and the only reason you file a tax return is to claim a refund of withholding, and you claim no additional credits or rebates.  Because of the enhanced child tax credit for 2021, you will definitely want to claim the children on a tax return in your own name even if you don’t have very much income. You may claim your children as long as they live with you more than half the nights of the year.

Looking forward to 2022, once you are married, he has the same right to claim his stepchildren as dependents as the biological parents do, as I previously explained.