Being in two houses

[Josephpritt20]

Me and my wife live in two houses and we have two kids that live with her I wanted to know is there a way I can claim the kids on my taxes next year I moved out in February of this year and she does not work and is on government assistance I do help her as much as I can and she gets child support I was also was wondering if we can file married joint instead of filing married separate? I don’t want her in trouble with the government assistance program 

[Opus 17 · Accepted solution]

For 2019, if you lived together all year, and are filing separately, then either of you can claim the children but not both of you.  You have the option of filing jointly if you agree to do so. 

For 2020, if you are living apart, then the following rules apply:

• If you are still legally married as of 12/31/2020, you can file jointly, assuming you agree to do so.  Sometimes separated spouses fight over the refund.  You may want to have an accountant or your attorneys involved to set something up ahead of time.
• If you are legally married as of 12/31/2020 and file separately, then only the parent where the children live more than half the number of nights of the year can automatically claim the children as dependents.  This is the "custodial parent" for tax purposes, and the IRS only follows where the children physically actually spend their nights. The IRS does not follow state court orders and "equal custody" is meaningless to the IRS.  In a year with and odd number of nights, one parent must have actual physical custody more than the other parent.
• If the parent with custody more than half the year also pays for more than half the household expenses where they lived with the children, they can file as head of household.  If they don't pay more than half the household expenses, they file as married filing separately.  The other spouse files as married filing separately in either case. 
• The custodial parent can release the dependents to the non-custodial parent by giving the non-custodial parent a signed form 8332 dependent release.  This allows the non-custodial parent to claim the $2000 child tax credit.  However, the ability to use the children to qualify for head of household status, the dependent care credit, and earned income credit, always stays with the custodial parent and those tax benefits can't be waived, transferred or shared.   

If you divorce before 12/31/2020 the rules are basically the same, a form 8332 release would still be required for you to claim the children if your ex has custody more than half the year.  You would file single instead of MFS.  (You still can't qualify to file HOH if you don't have custody more than half the year.)

I can't tell you anything about how your tax or custody situation would affect the assistance she is getting, she should contact her caseworker. 

[Carl]

The simple answer:

I was also was wondering if we can file married joint instead of filing married separate?

If you were legally married on Dec 31 of the tax year, then your choices are MFS or MFJ. I'm sure that both of you are aware that filing joint (if you qualify) is most advantageous tax-wise for both of you. Then all that stuff about custodial parent and non-custodial parent, you can not bother with.