My soon to be spouse claiming my children's in her tax

[TAI3]

I'm currently in the middle of a divorce process, and we haven't yet determined who can claim the tax for our children. Unfortunately, my spouse claimed our children on her taxes before I even received my W2 from my employer. The issue is that she didn't work at all, and I'm the sole income earner in the family. How can I make sure that this doesn't happen again?

[xmasbaby0]

What tax year are you asking about?   And if you mean tax year 2022---what did your spouse enter on an income tax return?   If she had no income at all----all of the child-related credits are based on having income from working.   So what did she do?  Did she prepare a joint return and enter something for income for YOU on it?   If she filed married filing separately, or even head of household, without income from working, she would get nothing.   Who did the children live with?   When did you separate and begin living apart?   Provide some details..

[Mike9241]

you can't stop her from claiming the children even if she is not entitled. The IRS will only act when two returns are filed claiming the same children. then the IRS will send out notices asking each for proof they are entitled to claim them. the loser gets a bill for any taxes, penalties and interest owed. Even after the court decides who gets to claim them and what years, the IRS is not bound by that decision. The IRS looks purely at the custodial parent. the one the child or children spent more than 1/2 the nights with during the year unless the custodial parent furnished the other with form 8332.  there are other rules. for example, while the court may say the noncustodial parent gets to claim them in say odd number years, the custodial parent is not bound under the tax laws to observe the decision. However, what can happen is that the noncustodial parent can haul you back into court for violating the court order and then the court can find you in contempt and level penalties.  

[NCperson]

@TAI3  you left out some cricial facts to give you a decent answer,.

Who did the children live with more than 6 months of the year? THAT parent is controling the tax credits. 

in 2022, what filing status did you use in your tax return? 

in 2022, in the last 6 months of the year, did you live with your spouse or did you two live apart? 

are you legally separated? if yes, what was the date of that legal separation? 

if your soon to be ex-spouse did not work, the tax credits are not worth anything to her. 

[Opus 17]

For 2023, the first consideration is, "where did the children spend more than  half the nights of the year?"  If that is the other parent, then only the other parent has the automatic right to claim the child as a dependent, regardless of who earns more or who pays support.  The other parent can only claim the children as dependents if  the parent with custody more nights signs a waiver. 

Only if both parents can claim more than half the nights of the year (such as, because you separated after July 1), do you think about tiebreakers, which include income.

[Hal_Al]

 This may not be applicable for 2022, depending on the details of your separation.

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 dependency 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: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

You can if you are the custodial parent.  The custodial  parent is the parent the child lived with for more than 183 nights in 2020 (more than 182 nights  in 2019).