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My ex and I have 2 kids together, who get sto claim them on taxes?

Tampa, FL |

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?

Attorney Answers 5

Posted

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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Heather Morcroft

Heather Morcroft

Posted

If you are the one entitled to claim them and he does it instead, then you could report it, and get a remedy. However the smartest thing to do is run the numbers, see who would get back the most money by claiming them, or if you split them up and one of you claimed one and one claimed the other. Whatever gets you the biggest refund, do that, and then split the refund between you.

Asker

Posted

He makes more money but, we have equal time with them. That does not make any since that if he makes more money he can claim both of them. If we run the numbers I get more back. He doesn't get anything back b/c he makes so much.

Asker

Posted

They are 6 years old, and these past 6 yrs we have always done it that I claim one and he claims one. But since he is upset about the break up now he is saying he's going to claim both

Heather Morcroft

Heather Morcroft

Posted

Well, that is the IRS rule. Thank goodness I don't make those rules, but that is the way it is. I don't think they figured on the earned income credit when they made that rule. But if you get more back, try talking to him. Or go back to court and get an order so that you can claim them. And does he actually have them an equal number of nights? Or is that just the plan.

Asker

Posted

I have them Sunday-Sunday, and he has them Sunday-Sunday. So I guess one of us has them one extra night but, I don't know how to determine who that person is

Heather Morcroft

Heather Morcroft

Posted

I would suggest that you try to talk to him about it from an economic perspective, and if that doesn't work, go back to court or mediation to get an order regarding who gets to claim them if he plans to continue harassing you with this.

Asker

Posted

Okay thank you. There is absolutely no talking with this gut. Thanks for the advice!

Heather Morcroft

Heather Morcroft

Posted

Good luck!!

Posted

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.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

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Howard M Lewis

Howard M Lewis

Posted

sorry, please note that you must have them equally and then the party who has a higher income by claim the exemption.

Posted

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!)

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Posted

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.

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Posted

You have to go back to court to get clarification on this issue. Contact my office for free consultation 727-446-7659. For this year you can claim them.

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