Can I claim my wife & or kids if she says no? They lived with me all year until November. She did not have a job, I paid bills, ect. Still married not living together???

[Jarodturner]

She got a job after she left me but from Last year to this November the only income she had was child support is there anyway I can still file jointly or count the kids as dependants even if she doesn't  want me to? We are legally married still

What legal actions can I do?

[Opus 17 · Accepted solution]

You can't file a joint return unless you both agree.  It sounds like that is out.

If you separated in November, then neither of you can file a head of household, you must both file as married filing separately.  When married filing separately, you can only claim the personal exemption for your spouse if her income was less than $4050 and she will not be filing a tax return.  (Spouses are never dependents, but you can sometimes claim the spouse's personal exemption, which is similar.)

For your children, you both could claim the children as dependents since the children lived with both of you more than half the year.  However, a child can only be claimed by one taxpayer.  If you both claim the children, the first tiebreaker is with which parent did the children live more? (Stay the most number of nights in their home.)  If your wife had more custody than you after the separation, then she would get the tiebreaker if you both claimed them as dependents.  If you had custody more nights, then you can claim the children, and if custody was exactly equal number of nights, the second tiebreaker is the spouse with the higher income.

[Hal_Al]

Q. What legal actions can I do?
A. She has complete control (assuming the kids lived with her more than they lived with you). Be sure your lawyer includes taxes in the the divorce settlement. For example, assuming the legal paperwork can't happen til next year; ask for a requirement that she amend 2017 return to Married Filing Jointly(MFJ). That means sharing the tax refund (and there will be a big refund for amending from Married Filing  Separately to MFJ). If you want to claim the kids in the future, it needs to be in the divorce papers, including a requirement that she provide you IRS form 8332.

[Jarodturner]

We all lived in the same house all year until November

[Opus 17]

You two would likely pay lower taxes or get a bigger refund if you filed MFJ, the trick is to convince her to do it and to have a foolproof way of splitting the refund.  An attorney can certainly help here.  (You can't force her to file MFJ but you can try and persuade her based on the larger refund she will get.)

For future years, I actually don't like the idea of splitting the dependents -- alternating years and so on.  I've seen too many complaints.  The problem is that even if you agree to alternate years, the IRS is not bound by your decision and if she doesn't sign the required form, you have go to family court and ask for an order that she sign the form -- the IRS won't do anything otherwise.

It seems to be smarter to me to simply let her keep the dependents in every year she qualifies (assuming she gets majority custody) and instead, negotiate for a lower child support rate.  Every other year when you could have claimed the children, instead your child support is reduced by $2000 per child.

That way you aren't dependent on her to sign a form for you every other year for the next 21 years.

(Just my opinion, I'm not a lawyer.)

[Jarodturner]

She hates me she wouldn't file jointly .. I do know that you can only file 2 ways if you're married but she said she wasnt claming married anything

[Hal_Al]

You can use this tool to do preliminary estimates, both ways, if you have a rough idea of what her income is.Money talks. Actual numbers might help. <a rel="nofollow" target="_blank" href="https://turbotax.intuit.com/tax-tools/calculators/taxcaster/?s=1">https://turbotax.intuit.com/tax-to...>

[VolvoGirl]

If you file Joint you might get a refund.  Tell her half of it is hers.  Will she turn down money?

[SweetieJean]

Do you live in a Community Property State?