Skip to main content

What should I do about ex-wife claiming my daughter on tax return when decree says I do?

Fort Worth, TX |

The divorce decree states I claim my daughter and she claims my son. She says since kids live with her more than 6 months of year she is claiming both. What should I do. Also in decree I pay a certain amount of child support.. which I do plus I transfer additional $200 a month from my bank to hers. Cause what I pay in child support is bout $200+ less than 25% of my income. Any suggestions here would help......

+ Read More

Attorney answers 4


If the decree allows you to claim your daughter, then you should do so...after obtaining the same advice from your tax preparer.
If a problem arises, you can file motion to enforce that term of the decree.
Best of luck!


If your decree allows you to claim your daughter then you should. This could cause you and your ex to be audited on this issue, but when you provide a copy of the decree you should be able to prove your right to claim your daughter and this should allow you to get your refund.

This answer is based on general legal principles only and is not intended to provide specific legal advice. This answer is for informational purposes only and does not constitute the formation of a lawyer-client relationship. Any reader of this answer should not make decisions based upon in without first directly consulting with an attorney


I think the Federal IRS Code trumps a State Divorce Decree. Although you may have an Enforcement or Breach of Contract claim against her. I wouldn't pay that extra $200 until it equals the money you would have received on the return had you been allowed to claim the children. If she goes back to Court to increase your child support that would be a good time to assert your breach of contract claim. Note that usually the person who pays child support does not get to claim the children.

This does not establish an attorney/client relationship

Dorothea Elaine Laster

Dorothea Elaine Laster


Be very careful about doing anything that is going to invite an audit, because you could end up on the wrong side of it. Did the Decree invision that she would have both children more than six months out of the year?


You should probably claim the child. This will cause a flag at the IRS and they will send your return back (or hers if you file first), with a request for proof of who is entitled to claim the child. While federal law (IRS) does trump state law and state orders in most case, the Internal Revenue Code does permit parents to agree on who can claim the dependents. It may come down to how well the language in your decree is crafted. Obviously, you are better off sitting down with an attorney and going over your Decree to be sure.

Not sure what to tell you about the child support. It raises more questions than anything. Why are you paying more than required in the decree? Also, why are you paying it directly? If you are going to pay more for some reason, you should have something in writing that says what you are paying and what it is for (and make sure it doesn't go against something in your Decree). Consult an attorney about what you are doing there and make sure you are not setting yourself up for a problem in the future.

Answering your question does not create an attorney-client relationship. Furthermore, you should not take the answer as a complete answer to your question because the facts of your case can make a big difference and it is impossible to know the advice to give without a consultation. You should seek a consultation with an attorney immediately to protect your interests and rights.

Get Avvo’s 10-part divorce email series

A weekly guide with tips and legal advice for each stage of the process.

Divorce topics

Recommended articles about Divorce

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer