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Egutierrez03
Returning Member

Question

I have 2 girls they both have a indefinite restraining order on there dad Since April 2018 . This year in our Prior Arrangements he suppose to claim the girls this year . My question can he still claims my girls even though he has not had them and also have not pay child support from November 2017.
Please let me know to see how I be filing thank u
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4 Replies
AJ
Level 6

Question

     I need to make assumptions for a typical situation because all the details are not provided. I am assuming that you are recently divorced, legally separated, or you lived apart all of the last half of the year.  From your statement, it appears that the child lived exclusively with you and not the father.   In such cases, you would be the "custodial" parent, and the father would be the "non-custodial" parent.

     Note that the determination of "custody" is based on with whom the child lived. You don't trade that back and forth unless the child physically lives with each parent more than half time on alternating years.  Basically, if you and the father are supporting the child, and if the child ALWAYS lives with YOU for over half the year (and the child never switches arrangements to live with Dad for half of any year) then you would ALWAYS be the "custodial" parent because you retained the custody of the child.

     So if you are always the "custodial" parent for every year, then every year (whether or not the father gets the dependency for the child) you would always (assuming you are not remarried) get the option to file Head of Household, and you would always get the earned income credit for the child, and you would always the get any child and dependent day care credits (assuming you are otherwise qualified) to provide for care that allows you to work.  The father would NEVER get those benefits, whether he had the dependency or not, because the father would be the "non-custodial" parent.

     In the years where the father does claim the dependency, then the father does get the child tax credit and education credits, if any.  In the years where the father does claim the dependency, then when you file your own tax return, you must list your child on your return and you would need to click a box to indicate that the listed child is being claimed as a dependent on someone else's return in order to avoid two taxpayers claiming the same dependency.

     If you take the dependency, then then the father should not take the dependency.   If both you and the father claim the dependency, then the second return to get filed will be rejected.  When a tax return is rejected, the IRS will then look at both returns and the correct legal situation should be determined and corrected.  (Try to get it right the first time, and save yourself a lot of work, and avoid the risk of possible fraud determinations.) You should follow the legal requirements of your separation agreement or divorce documents.  In order to give the father the dependency for the child, you would normally give the father a Form 8332 to grant the dependency to him.  You can issue a new 8332 to remove his option to take the dependency, but I recommend that you talk to your divorce lawyer before taking such a step because you do not want to be the one to violate any legal agreements that may be in place.

Egutierrez03
Returning Member

Question

On are divorce papers it’s say both parties agreed on monther claims kids on on odd years and father claims on even years that was on year 2016 divorce paper. But on Feb 2018 both girls got restraining order on there father does he still have the right to claim them even thought he don’t have any right to them.

Question

check with your lawyer - an anonymous community posting board many not be the best approach 

AJ
Level 6

Question

I repeat the previous statement.  Your divorce papers only seem to cover trading the "dependency" exemptions, which for young children essentially translates to trading the "Child Tax Credit" which could be as high as $2000 per child.  You seem to indicate the your children are living with your full time every year and never with the father.  If that is the case, then that situation ALWAYS makes you the "custodial" parent every year. If you are unmarried, then you get the earned income credit and can file as Head of Household (assumes you meet the other HoH and care requirements), and you can get the credits (Child and Dependent Care) when you have to put your kids in day care while you go to work.  Those benefits never get traded to the Dad when the child lives with you all year.  With regard to his alleged lack of support, and you taking back the dependency exemptions, then you need to talk to your divorce lawyer since you seem to have a legal contract, and this forum cannot address that. If your lawyers tells you to take the dependency back and if you have filed a Form 8332 giving him the exemption, then upon your lawyers advice (I would want to have it in writing) then you can file an updated 8332.  But I recommend that you only do that on advice of legal counsel. 

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