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Can my ex husband claim our children on his taxes when they live with me (their mom)?

Conway, SC |

When tax season comes around, and I file my taxes claiming my daughter and son who live with me (Im the custodial parent) and he files them too....Do I get in trouble or does he get in trouble? I read on the IRS website that whoever the custodial parent is of the children have rights to claim dependants. It is not on our divorce decree that he has any right whatsoever...nor Did I fill out anything stating so. Should I just go ahead and file my taxes this year claiming my children and if he claims them too just let him get in trouble? The EX has both kids SS# and if he gets his w2s before I do he can claim them before I do. I dont know how to go about this. Any advice would be GREATLY appreciated. Thanks

So should I just go ahead and file on my own? And how exactly does the IRS investigate? How will they know that Im the custodial parent and he isnt? - I do not want him claiming either children. So Im not going to waive my right to it. Im just stating I havent given him permission to do so and if he does obviously he could be charged with tax fraud and have to pay it back

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Attorney answers 4


ou have the right to file. He does not. If both of you file, then the IRS will investigate. If he gets a refund, then he will owe it back. He can be charged with tax fraud. You should just be very clear with him that you intend to claim your children until they reach the age of majority. It does not matter if he is paying child support. You still get the deduction.

My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed to practice in the appropriate jurisdiction where the legal issue may be filed or in the state where the law applies.


Even though you are entitled to claim them because they live with you most of the time, you can waive your right to claim them so he can. You would need to file an IRS Form 8332.

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation.


I agree with the prior attorneys comments. For more details on this issue please look at my legal guide here entitled DIVORCED OR SEPARATED PARENTS: DETERMINATION OF DEPENDENCY EXEMPTION at the following link:

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Since he does not have your permission and there is no court order stating that you are to allow him to do it, then I suggest you go ahead and file and claim the children. If he claims them also, this will trigger an audit and you will be asked to prove that the child lives with you the majority of the time. This shouldn't be a problem for you to prove.

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