My husband and I are in the process of divorce. I have kids from a previous relationship. Can he claim my kids on his taxes if we file married separately?

[bwa · Accepted solution]

Well we can't agree, but he thinks he can claim MY kids, his stepchildren, if we file separately because his income is higher.

Let me make an assumption:  You separated sometime during the year, up until that point the children lived with both of you, and after that point the children lived with you.

If that assumption is correct, you are the one entitled to the dependency exemption because you are the custodial parent (the one the children lived with the longest.)  The custody rule is applied before the income rule, so if my assumption is correct, his income doesn't matter.

Also remember - if you both file married filing separately neither one of you can claim EIC or the child and dependent care credit, because they're not allowed on a MFS return.

[vlfdiver1]

Yes, your assumption is correct. If things were amicable, I would file jointly, but I just don't trust him, so separately makes more sense to me.  Thank you for your help!

[bwa]

Suggestion:  File early.  If you file first, his return will reject if e-filed.  If he files first, your return will reject.  If so, you would need to print and file by mail.

[vlfdiver1]

Thanks, yes I plan to file as soon as I receive my W2. I'm hoping his has some delay since he had several employers in 2016 and has changed addresses. LOL

[macuser_22]

For reference see IRS Pub 17 under "Custodial parent and noncustodial parent".  Note that as bwa said that his income only matters if the  number of nights spend with both parents is exactly the same.  In your case you have more nights so you are the custodial parent and can claim.

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170891">https://www.irs.gov/pub...>

Quote
"Custodial parent and noncustodial parent.   The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.

  If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year.

  A child is treated as living with a parent for a night if the child sleeps:
  -  At that parent's home, whether or not the parent is present, or
   - In the company of the parent, when the child doesn't sleep at a parent's home (for example, the parent and child are on vacation together).

Equal number of nights.   If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI)."
End quote

[Texas Roger]

One additional possibility for you to consider is filing as head of household. If you lived apart for the entire last 6 months of the year, you may qualify to file as head of household. Here are the requirements: 1. You are not married or “considered unmarried” on the last day of the year. You are considered unmarried if you lived apart from your spouse the entire last 6 months of the year. 2. If "considered unmarried" you file a separate return from your spouse. 3. You paid more than half the cost of keeping up your home for the year. 4. You have a qualifying child (whether or not you claim the dependency exemption) or you claim a dependency exemption for a “qualifying person”  who is related to you and who lived with you in the home for more than half the year. An exception is a parent does not have to live with you to be a qualifying person. Head of household filing status allows you to qualify for credits such as earned income credit that you can't get if you file married filing separately.

[DianeW]

The answer depends on how many months the children/stepchildren lived with him in 2016.  Relationships established by marriage are not ended by death or divorce.

For your convenience I have attached the IRS definition of a qualifying child.

• What is Form 8332: Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent

(Edited:  01.10.2017 | 9:31a PST)

[Texas Roger]

If the children lived with both you and your spouse more than half the year and meet the tests to be claimed by either of you and you can't agree on who will claim them, the tiebreaker rules come into effect. The first tiebreaker is number of nights living with you. Whoever the children lived with the most number of nights during the year is the one who is entitled to claim them as a dependent. If the number of nights is the same, the second tiebreaker is adjusted gross income. Whoever has the highest adjusted gross income is the one who is allowed to claim them.

[vlfdiver1]

Well we can't agree, but he thinks he can claim MY kids, his stepchildren, if we file separately because his income is higher. Just makes no sense to me. Wouldn't me or their biological father take precedent over my husband for claiming the children?

[DianeW]

Check the link I added to the answer, most notably the noncustodial parent section.