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My ex file the income tax while we were separated and we have a child together ( he's 5 ) , does he has right to do that

Dallas, TX |

My ex and i been separated since July of 2011 , i have primary custody of the child , he pays child support and have visitation , he say we should take turns filing our child on the income tax , if its not true , can i have judge grant me in the final decree to file my child when income tax come because i m taking care of him 90 percent of the time

Attorney Answers 4


  1. If you are represented by an attorney going through the divorce this is really a question for that lawyer. Depending on the specific facts of what "taking care" and how accurate 90% is, generally and I mean that in a very general sense, it would be proper for you to claim the child. However it depends on the specific facts which should be reviewed by either your family law attorney, or potentially you might want to have a brief discussion offline with a tax lawyer or enrolled agent before moving forward.

    Best of luck

    There is NO attorney-client privilege based on this interaction. I am NOT your attorney. We have no signed engagement letter with a clear understanding regarding fees. Further, everything we both just wrote is publicly available on the internet and would be the same as if we were talking in a crowded restaurant, there are many witnesses looking over your shoulder and can repeat anything you write here. If you need legal assistance use Avvo to find a local attorney in your jurisdiction that you feel can best represent your interests as a zealous advocate. My experience is in corporate tax, white collar criminal defense, partnership tax, and tax controversy/litigation. If you're being audited by the IRS or state taxing authority, or you are taking an unusually risky tax position on a return, that is the kind of thing you should have experienced counsel on your side and we can set up an initial consultation. If you have a family law, debt collection, violent crime sort of issue then I do not handle that. Do not contact me for an initial consultation on non-tax matters.


  2. The dependency exemption for the child is not something the divorce court judge can award.
    That is a matter of federal tax law and generally goes to the parent with the primary custody. If you and your ex agree, then you and he may contract to do othewise with the dependency exemption. But, you have no obligation to do so. Nor can he make you. Get a

    Get a lawyer involved with your divorce

    I am not intending this to be legal advice, because I don't know the particulars of your situation. Call me if you would like to discuss this or other isues.


  3. As has been suggested, you and your spouse can agree that you will alternate the right to claim your child as an exemption under your taxes, but your husband has not done anything that is prohibited by the US Tax Code or by any Court, since it appears from your answer that a divorce is not presently pending.

    You need to engage experienced legal counsel to file a divorce on your behalf and proceed with that process so that these issues can be discussed, negotiated and resolved. Best of luck to you in this process.

    There is no legal relationship created or implied by the exchange of messages or information on this website. All statements by me are offered as general guidance, but should not be considered in any way to be legal advice for you to act on without consultation with a licensed lawyer in your state. In all cases, an attorney should be retained to review the full circumstances and deliver advice consistent with the information and guidance offered on this site. Legal advice is ONLY offered by me in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.


  4. As the other attorneys have stated you and your ex can make an agreement regarding who takes the child on their tax return. This is an issue that should be addressed in your divorce agreement. If you do not have a divorce attorney yet it would be to your benefit to retain one to get an agreement in place.

    lscampbell@cttaxhelp.com Office number: (860) 255-7423 Website: www.cttaxhelp.com. Our reply to your question has not created an attorney-client relationship. It should not be considered legal advice. You should contact an Attorney who can give you legal advice after acquainting themselves with the specifics of your case.

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