Legal?

[Anonymous]

My wife and I have been separated for 4 years and we have a daughter and she lives with her. I am disabled and my daughter receives a monthly check for me being disabled. My ex has two other children by a man she is living with. My wife/exwife does not work. The payments that my daughter gets is roughly $600 mth. My question is , Can the man that lives there where my child resides claim my daughter as a dependent on his taxes for anything? We do not have anything from the courts saying who has custody or anything of the sort. I also purchase my daughters clothing and any school needs she may have. My daughter also stays with me every weekend and almost every other week. My ex also receives help from DSS also.

[macuser_22]

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@Anonymous wrote:

My wife and I have been separated for 4 years and we have a daughter and she lives with her. I am disabled and my daughter receives a monthly check for me being disabled. My ex has two other children by a man she is living with. My wife/exwife does not work. The payments that my daughter gets is roughly $600 mth. My question is , Can the man that lives there where my child resides claim my daughter as a dependent on his taxes for anything? We do not have anything from the courts saying who has custody or anything of the sort. I also purchase my daughters clothing and any school needs she may have. My daughter also stays with me every weekend and almost every other week. My ex also receives help from DSS also.

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That depends on a lot of facts that you have not posted.   If your ex is required to file a tax return then only she could claim the child.   If she is not required to file a tax return then an unrelated person can possible claim the child provided that child lived with him the entire year, and he paid more than  half of her total support for the year and her gross income for the year was less than $4050, however money from Social Security or disability does not count.

[Hal_Al]

Q.   Can the man that lives there where my child resides claim my daughter as a dependent on his taxes for anything?

A. Yes, probably*.  But he can only claim the child for the up to $500 other dependent credit.  It would be fraud for him to claim the Child Tax credit (up to $2000) or earned Income Credit (EIC) based on an unrelated child. 

The other question is: if neither the ex wife or boyfriend claim the child, on their taxes, can you?  The answer is no.  To do so, you must have her permission.  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 and regardless of her income. The IRS goes by physical custody, not legal custody. 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 court order. Even if a court order, 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

But if you do claim the child, you will receive the Child Tax Credit, usually a $1500 difference from what the boy friend can legally receive.   So, you may want to make a deal with the ex. As the non custodial parent, you are not eligible for the child based EIC.

*The $600/month disability  ($7200/year) does not count as income, for the income test, but it does count as support not provided by the boy friend, for the support test.  So, maybe not. 

There are two types of dependents, "Qualifying Children"(QC) and standard ("Qualifying Relative" in IRS parlance even though they don't have to actually be related). There is no income limit for a QC but there is an age limit and student status test, a relationship test and a residence test. Only a QC qualifies a taxpayer for the Earned Income Credit and the Child Tax Credit. The Other dependent (qualifying relative) credit is worth (up to) $500 per dependent and is non-refundable.  That is, it can only be used to reduce an actual tax liability.

A person can still be a Qualifying relative dependent, if not a Qualifying Child, if he meets the 6 tests for claiming a dependent:

1. Closely Related OR live with the taxpayer ALL year  
2. His/her gross taxable income for the year must be less than $4200 
3. The taxpayer must have provided more than 1/2 his support

In either case:

4. He must be a US citizen or resident of the US, Canada or Mexico
5. He must not file a joint return with his spouse or be claiming a dependent of his own
6. He must not be the qualifying child of another taxpayer (your child is not your QC because she does not live with you more than half the year)

In addition to the above requirements, to claim your girlfriend's children, they must meet all of the above requirements and:
--- your girlfriend must not be required to file a return,
--- she does not file a return claiming the children

[Opus 17]

Your wife has an absolute right to claim the child as a dependent.

Your wife's boyfriend can only claim your child as a dependent if,

1. your wife has less than $12,400 of taxable income and either does not file a tax return, or files a return to get a refund of withholding and claims no deductions, credits or dependents.
2. the child lives in the same home with the boyfriend for all 365 days of the year
3. the boyfriend pays more than half the child's support.  This means that whatever other support the child has (including money from its mother and your disability check) the boyfriend must pay more than all the other support added up.

Even in this case, the child would get the boyfriend a $500 tax credit, not the $2000 credit, and does not qualify the boyfriend to claim EIC.