We have a parenting plan that states we have 50/50 custody of the kids. But it doesn't say who gets to claim the kids. My ex and I do not get along at all. I tried speaking with him to see if he will agree to each of us claiming one child. He said " it's a race to the end, so if I get my w-2's first then I'm claiming both of them". Can he do this? I just want to be fair, and make things easy. If he does claim both of them, is there anything I can do about it?
Family Law Attorney
If you don't have an order from a court who gets to claim them or giving alternating years, and you don't have an agreement, then the IRS has rules. Whoever has them more nights of the year gets to claim them, or if you have equal nights per year, then whoever makes more money gets to claim them.
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I am sorry that you are going through this. The IRS controls this issue unless you have an agreement to the contrary. Whoever has the children more nights per year may take the exemption or whoever makes more money may take the exemption. However, this is easily modified to help the parties, for instance if the exemption does not help the party who make more money the court can discuss with you that they may give you that exemption rather than waste it. take care.
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Divorce / Separation Lawyer
IRS Reg. 8332 states, absent an agreement otherwise, that the party with whom the children reside more than half the year and who pays more them 50 percent of their support gets to claim them! Since they live with you, claim away! (If you both do, the IRS may inquire, but you'll prevail!)
I agree with my colleagues. I would also add that the Parenting Plan or Final Judgment should have included a provision regarding the dependency tax exemption. To avoid future problems you could file for a modification.