Yes, you can claim your children. Since there is no custodial agreement or court document, the custodial parent will become the parent with whom the child spent the most nights during the year. Since the children lived with BOTH of you for more than 6 months, either of you could potentially claim them. Living in the hotel does not change anything.
To claim someone as a qualifying child:
- Your child (including adopted and foster children), your sibling, or a descendent of any of them.
- Age 18 or younger at the end of the tax year OR under 24 (and younger than you and your spouse) if they are a full-time student
- Lived with you for more than 6 months during the tax year
- They did not provide more than half of their own support
- They did not file a joint return, unless it was to claim a refund
A qualifying Child may allow you to claim Child Tax Credit and Additional Child Tax. If they are 17 or older, then you would not get the Child Tax Credit, but instead you would get the Other Dependent Credit.
If you file first and he still chooses to claim them, he would need to print and mail his return, then the IRS would contact both of you to determine who actually should claim the children.
Be sure to keep any type of documentation, such as school enrollment, medial records, legal documents, or even bank statements showing you are buying food for everyone. This will help you show that they lived with you and not him for the last 4 months.
Under the IRS tiebreaker rules, the parent with who the child lived with the longest wins the tiebreaker. Therefore, if you both filed a return claiming them, if you all lived together for 8 months and then it was just you and your children for the final 4 months of the year, you would have them 12 months (more nights than he did) so you would likely win the tiebreaker.
**Say "Thanks" by clicking the thumb icon in a post
**Mark the post that answers your question by clicking on "Mark as Best Answer"
