I have children however I can not claim them, my exhusband does per court. Do I click on yes or do I click on no, I don't?

[DanielD]

You can still list your children on your tax return then indicate that you are not claiming them as a dependent if this year you cannot claim them based on court arrangements; however, listing them isn't going to give you any benefits unless you were going to be able to claim them. Sometimes in this situation where you know that you cannot claim them it's easier to just leave them off your return.

[Hal_Al]

 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

 So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[Hal_Al]

The custodial parent ( The IRS goes by physical custody, not legal custody) has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. <a rel="nofollow" target="_blank" href="https://www.irs.gov/pub/irs-pdf/f8332.pdf">https://www.irs.gov/pub/irs-pdf/f8332.pdf</a>

[DanielD]

Thank you for that additional information. I was not aware that the parent not claiming their dependents this year would still qualify for the EIC.