Can I claim stepchildren if filing separate?

[djsabres]

My wife and I separated at the end of December (Not a legal separation, just not living together) she has 4 children to which I am the stepfather.  We are able to claim the children, but she does not want to file together. Can I claim the Children if my AGI is higher?

[SweetieJean]

Do you know why she doesn't want to file Joint?  There are many disadvantages to filing Married Separately, especially if you are in a Community Property State. Is there any chance that the children's father will want (or try) to claim them?

[xmasbaby0]

A step-parent has the same rights to claim the child as the bio-parent.   Do make sure the two of you are "on the same page" about who is claiming the children.  You cannot both claim the same child(ren).  

You lose a lot of child-related credits when you file married filing separately.  Both of you need to be aware of that when you decide to file that way.

If you were legally married at the end of 2020 your filing choices are married filing jointly or married filing separately.

Married Filing Jointly is usually better, even if one spouse had little or no income. When you file a joint return, you and your spouse will get the married filing jointly standard deduction of $24,800 (+$1300 for each spouse 65 or older)  You are eligible for more credits including education credits, earned income credit, child and dependent care credit, and a larger income limit to receive the child tax credit.

If you choose to file married filing separately, both spouses have to file the same way—either you both itemize or you both use standard deduction. Your tax rate will be higher than on a joint return. Some of the special rules for filing separately include: you cannot get earned income credit, education credits, adoption credits, or deductions for student loan interest. A higher percent of your Social Security benefits may be taxable. Your limit for SALT (state and local taxes and sales tax) will be only $5000 per spouse. In many cases you will not be able to take the child and dependent care credit. The amount you can contribute to a retirement account will be affected. If you live in a community property state, you will be required to provide additional information regarding your spouse’s income. ( Community property states:  AZ, CA, ID, LA, NV, NM, TX, WA, WI)

If  you are using online TurboTax to prepare your returns, you will need to prepare two separate returns and pay twice.

https://ttlc.intuit.com/questions/1894449-married-filing-jointly-vs-married-filing-separately

https://ttlc.intuit.com/questions/1901162-married-filing-separately-in-community-property-states

https://ttlc.intuit.com/questions/1894449-is-it-better-for-a-married-couple-to-file-jointly-or-separ...

[djsabres]

She does not want to file together because she does not want to share the child credits. It is in her divorce decree from her previous marriage that she claims the children and not the father. The children lived with us for 10 months of the year.

[xmasbaby0]

@djsabres That's an interesting twist on your situation.   You say you want to claim the children on your return, but the reason your spouse does not want to file a joint return is that she does not want to share the child-related credits?    You and your spouse have more than a tax issue.   You will have to work out which one of you claims the children.  They cannot be claimed on both of your separate returns.

[djsabres]

I agree on things to work out, but it is not the best situation. There is contention. My understanding is that as a stepparent am considered the same a bio parent , then the tie breaker rules would go in my favor? So even if she does claim them I could contest that. I plan to file first, if she will not cooperate.