Unfortunately, we cannot counsel you on the child support issue and the lawyer. However, we can address the dependency of the children. Basically, only people who are qualified to claim a dependent per the IRS rules can claim them. So if you meet the below criteria, YOU are the one who should be claiming both:
Dependent taxpayer test: The taxpayer, or spouse of the taxpayer if filing jointly, cannot be eligible to be claimed as a dependent on someone else’s tax return.
Married Filing Jointly test: If you file a joint return with your spouse, you cannot be treated as a dependent. (This rule does not apply if the joint return was filed only as a claim for refund and no tax liability would exist for either spouse if they had filed separate returns).
Citizen or resident test: The person claimed as a dependent must be either a U.S. citizen, U.S. national, U.S. resident alien, or a resident of Canada or Mexico. An adopted child that lived with the taxpayer all year passes this test if the taxpayer is a U.S. citizen or U.S. national.
Qualifying Child
In addition to the above, you must be able to answer "yes" to all of the following questions to claim an exemption for your child.
Relationship test: The child must be the taxpayer’s son, daughter, stepchild, foster child, brother, sister, stepbrother, stepsister, half brother, half sister, or a descendant of any of these, such as the taxpayer’s grandchild, niece, or nephew.
Residency test: The child must have lived with the taxpayer for more than half of 2019.
- Temporary absences (e.g., school, vacation, business, medical care, military services, or detention in a juvenile facility) are considered as time living with the taxpayer.
- Exceptions apply under the rules for children of divorced or separated parents. See IRS Publication 501 for details.
Age test: The child must be
• Under age 19 at the end of the tax year and younger than the taxpayer (or spouse), or
• Under age 24 at the end of 2019, a full-time student for any part of five calendar months during the tax year, and younger than the taxpayer (or spouse), or
• Permanently and totally disabled at any age
Support Test: The child cannot have provided more than 1/2 of his/her own support during the tax year. Welfare, TANF, and scholarships received by the child are not considered support.
If you met the criteria to claim the children, you can claim both on your return. You will have to paper-file because the IRS will reject your e-filed return if one of the dependents was already claimed. The IRS will the contact you and the father by mail and request information to prove who qualified to claim the dependents. This process can take months, though. They will then award the dependency exemption and any related credits to the parent who qualified.
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