Filing status and dependents while divorce is pending

[Jennifer_Smith]

My husband and I have been separated since April of this year. The divorce is pending and will not be finalized this year so I know I must file married in some manner. Our finances have been legally separated since the end of July, and outside of child support, we split our two children's extracurricular and health expenses 50/50. We are both employed and there is no alimony involved. I have physical custody of the children approximately 75% of the time.  I used my employer's dependent care FSA for summer daycare expenses for our 2 children. Our parenting plan is silent with regards to claiming dependents for tax purposes.

As of his August pay stubs, my husband had $0 Federal income taxes withheld due to claiming so many exemptions. I have been withholding the amount I would as if I were married-filing separately and claiming one dependent.

1) I was anticipating filing married-separate due to his lack of withholding. Is this recommended?

2) Since the parenting plan is silent on the matter, and our children's costs are split 50/50 outside of child support, can I claim one or both of the children as dependents?

[AR_CPA2]

Hello Jennifer_Smith, 

1.  If you are legally separated since April and did not live together for more than last six months of the year and your dependent children live with you, you may be able to claim as Head of Household filing status. 

2.  Since you're the custodial parent, and there is no legal agreement to allow him to claim the children, you can claim both children.  You have the right to claim both children, even though he contributes to child support.  It is up to you if you want to let him claim a child or not.