Claiming dependent

[mardee]

My fiance and I live together and have a daughter. He has two sons, and has equal custody of them so they are with us half the year and with their mom half the year. He has a legal agreement with his ex, stating which child they can claim each year for taxes.  However, he was injured and does not receive income now, so I am sole earner. Can I claim his son as a dependent since I supported them, he lived with us an equal amount of the year, and his father is legally entitled to claim him?

Do I need to file a form showing the court agreement?

Can I still claim head of household, even though we are unmarried, since he is not legally my stepson? I am also claiming my daughter as well, so planned to file as head of household. 

[KrisD15]

No. 

If your fiancé has an agreement, that agreement most likely is on Form 8332 which gives only certain credits to the non-custodial parent. If you claimed his son as a dependent, the credits the mother most likely assumes she will get would no longer be available for her. 

Regardless of Form 8332, to claim a dependent, they must be your Qualifying Child or Qualifying Relative.

His son(s) would not be considered your Qualifying Child because his sons are not related to you. 

They also would not be your Qualifying Relative because they did not live with you the entire year. 

If your fiancé earned $5,050 in 2024, you may be able to claim him as your Qualifying Relative. 

According to the IRS

• Qualifying child
  To qualify as a dependent, a child must also pass these tests:
  • Relationship: Be your son, daughter, stepchild, eligible foster child, brother, sister, half-sister or -brother, stepbrother, stepsister, adopted child or the child of one of these
  • Age: Be under age 19 or under 24 if a full-time student, or any age if permanently and totally disabled
  • Residency: Live with you for more than half the year, with some exceptions
  • Support: Get more than half their financial support from you
  • Joint return: Not file as married filing jointly unless only to claim a refund of taxes paid or withheld
  See the full rules for a qualifying child
• 
  Qualifying relative
  A qualifying relative must meet general rules for dependents and pass these tests:
  • Not a qualifying child: Isn't your qualifying child or the qualifying child of any other taxpayer
  • Member of household or relationship: Lives with you all year as a member of your household or is a specific type of relative
  • Gross income: Has gross income under $5,050
  • Support: Gets more than half their financial support from you
  See the full rules for a qualifying relative”
   

[mardee]

My fiance is considered the custodial parent, as the court order states. The children are split 50/50 in time and financial support, and the court orders state that the mother is entitled to claim the youngest every year on taxes, and the father can claim the oldest son. So the mother isn't expecting to receive any credits for her oldest, as the order states she can only claim the youngest. Their father was injured in 2022 and has an ongoing workers compensation lawsuit. He has no income for 2024. Being that I provided the support for our household in place of their father, wouldn't that qualify the oldest son as my dependent; being that he lived at our house and equal amount of the year, I provided the support, and there is a court agreement stating that the father has the tax claim? Can I claim both my fiance and his oldest son as my dependents? Again, his mother is not assuming she will receive any credit for him because she is only entitled to claim the youngest. 

Thanks

[KrisD15]

No, his son still would not be eligible as a Qualifying Child for you to claim because the his son is not related to you. 

The other option is if his son could be claimed as your qualifying relative, but for that his son would have to live with you the whole year. 

If you were married and filed a joint return, the situation would be different. But since you are not yet related to his son (you will be once married)  at this point you can't claim him. 

It might seem like, if you can claim the fiancé, you should also be able to claim HIS dependents, but it just doesn't work that way.