Married filing separately claiming children living in North Carolina

[ham8030x]

I live in North Carolina and going through a nasty separation since Dec 2021 from my wife who abandoned our house. I want to file separately since she will not talk to me and since I am the major wage earner can I claim our children on my Federal Tax?

[xmasbaby0]

Who are the children living with?     And have you only lived apart since the end of 2021?

[ham8030x]

the children are splitting their time but she abandoned the house on 12/8/2021

[MaryK4]

Yes, you can file a separate return and as the custodial parent (the one who the children live with) you have the right to claim the children as dependents and for the Child Tax and/or Earned Income Tax Credit.  See Children of divorced or separated parents (or parents who live apart). for complete information.

[ham8030x]

the children lived equal time in both houses in Dec 2021 after we separated .... what is the next tie breaker? Is it AGI?

[Opus 17 · Accepted solution]

The parent who can claim the children as dependents is the parent with whom the children spent the larger number of nights.  You actually have to count the nights the children lived in the home of each parent.  

It sounds like both parents get credit for 340 days (from 1/1/21 through 12/7/21).  Then, for the rest of 2021, count where the children spent each night.  Whichever parent had actual physical custody of the children for the night (in the home, or an apartment, or hotel room, it doesn't matter) gets credit for that night.

The parent with the most nights can claim the children as dependents.  In the event the number of nights is exactly equal, the parent with the higher income can claim them.

You do need to file MFS, you can't file single or head of household.

If your spouse also claims the children and e-files first, you will be blocked from e-filing.  If you have custody more nights, you can file your return by mail and get your refund.  The IRS will send letters to both parents asking for more information but this usually takes 9 months to a year to get going. 

[ham8030x]

thanks everybody for your timely responses!

[ham8030x]

follow-up question:  if separation date was on 12/8 and wife went out of state to be with boyfriend(12/1-7)...would 12/1-7 be counted as children with father?    

[DianeW777]

Yes, if the children were living with you during that time then you can count those days as living with you. She actually left on December 1st and then announced it on the 8th.

Keep in mind that as far as 2021 is concerned you must file married filing separate because you were not living apart for the last six months of the year.  The most important factor for your tax return is the ability to claim the children.  Keep your records for the number of days the children lived with you with your tax records should you need to show that later.

[ham8030x]

thanks!

[Opus 17]

---

@ham8030x wrote:

follow-up question:  if separation date was on 12/8 and wife went out of state to be with boyfriend(12/1-7)...would 12/1-7 be counted as children with father?    

---

It doesn't matter what is stated, what matters is what actually happened.  If she was not in the home the night of Dec 7-8, she doesn't get credit for that night. 

[ham8030x]

thanks!