If you have joint custody, who claims the kids on the income tax?I

Asked about 3 years ago - Carrollton, TX

I have my children more than my ex. Without my knowledge she recently filed and claimed them but I have them most of the time. Is there a way I can claim them and get her in trouble?

Attorney answers (4)

  1. Christopher Michael Larson

    Contributor Level 19


    Lawyers agree


    Answered . You can claim the children, provided it is not stipulated in any State court documents that you cannot. Follow any state court documents to the letter. In the absence of this, the parent that has the child for the majority of the year gets to claim them. But you have to prove they live with you. Court documents and letters from a school near the home pertaining to the child are very good evidence. But you have no control over whether your ex files her taxes correctly. You merely have a duty to do yours correctly. So if you know you are right, I would claim the child.

    The only thing that really works against you is that in our society the mother always seems to have the presumption of custody. I would not be the least bit surprised if they contacted you as opposed to her and made you prove it. It isn't supposed to work that way, but my guess is it will. All you can do is be ready to prove it.

    Christopher Larson
    Insight Law

  2. Phillip Monroe Smith

    Contributor Level 18


    Lawyers agree

    Answered . I agree with Mr. Larson. You will probably be audited if you claim your children because the social security numbers of your children will show up on two tax returns, and the IRS computers pick up on this. You will need to substantiate with documents that the children live with you most of the year, and you contribute to their support more than your ex.

    THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can... more
  3. Steven Anderson Leahy


    Contributor Level 17


    Lawyers agree


    Answered . I agree with my colleagues on this question. One additional point, if your children are in fact with you "most of the time" you may want to bring this matter before the Judge in your dissolution case. This is a common issue that can cause much anger and frustration. Therefore, making sure there is an order outlining the duties, responsibilities and benefits (tax deduction) exists will make your life (and your kid's life) much easier. Divorce is hard enough.

    I hope this helps.
    Steven A. Leahy

    Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-... more
  4. J David Hopkins

    Contributor Level 10


    Lawyers agree


    Answered . When you claim them, the IRS will send a letter to you & your ex asking for facts to support your positions. You will have to gather the evidence necessary to prove that the kids stayed with you longer than her.

    Get the custody agreement and any proof you have that the children stayed with you for the majority of the year. You can use medical records, school records, insurance or church records showing the residence and longevity of the stay.

    You will have Appeal options or Tax Court if the case isn't resolved to your satisfaction.

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