dependents

[Mike 9]

My wife had 2 children with her ex. we live in the state of colorado. the parenting agreement does not state which person may claim the children. he has claimed them for the past 5 years at least. However we have them more than 50% of the time. He claimed them again this year. If I file our taxes without the children can I amend the taxes to include the children? is there anything that we will need to do to claim them?

[Mike 9]

I also used turbo tax this year in case there is a section you can direct me to

[DawnC]

Yes, you can do that.   File your return without the children, then file an amendment later to add the dependents.   If you include them now, the return would be rejected if he already claimed them.   

How to I Add/Remove Dependents?     Look into getting an IP PIN - if you can get one quickly, you will be able to add the children and e-file too.  Beginning in the 2025 filing season, the IRS will accept Forms 1040, 1040-NR and 1040-SS even if a dependent has already been claimed on a previously filed return as long as the primary taxpayer on the second return includes a valid Identity Protection Personal Identification Number (IP PIN).  See IRS Help

Can Both Parents Claim a Child - Here is a great resource that explains that the IRS will get involved in these situations.  

[LindaS5247]

If your wife's ex-husband has claimed her children on his tax return you will not be able to claim them.

Only one person can claim the tax benefits for a dependent child.

If both parents e-file their returns, the second claim for the child will reject and the parent will be notified that the dependent with this Social Security number (SSN) is already claimed by someone else. Whether intentional or accidental, when parents claim the same child as a dependent in the same year, the IRS will determine which parent should properly claim the child and disallow the claim for the other parent.

You can claim a child as a dependent if he or she is your qualifying child. Generally, the child is the qualifying child of the custodial parent. The custodial parent is the parent with whom the child lived for the longer period of time during the year..

The custodial parent usually claims the "qualifying child" on their tax return. You are the custodial parent if your children lived with you the greater number of nights during the year.

So, if  you have them most of the time and provide more than half of their support you would be entitled to claim them as your dependents.

You would have to come to an agreement with him or possibly have a court order as to who will have custody and who can claim them for tax purposes to protect that right. 

If parents can't agree on who gets to claim a child as a dependent, the IRS will decide. The IRS will usually allow the claim for the parent that the child lived with the most during the year.

You can use this tool to determine "Who may I claim as a dependent?"

Click here for "Claiming a child as a dependent when parents are divorced, separated or live apart"

Click here for "About Publication 504, Divorced or Separated Individuals"