If you mean who claims the children as dependents on a tax return, then there are several scenarios. If you are filing married joint on your returns it does not matter. If you are filing married separate, the question becomes more complicated. Whether a spouse is entitled to claim the children as tax exemptions depends upon such spouse's compliance “with the IRS rules” (see generally 26 USC § 152[e]) . As a general rule, the custodial parent will receive the deduction unless he/she files a declaration relinquishing the right to claim the dependency exemption (IRS form 8332). However, in some cases, the no-custodial parent may be able to claim child as dependent if he/she meets all of the child's financial needs.
I also agree with what Mr. Barrows has suggested. (I also responded to this question, posted separately.)
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I agree with the above answers. I also suggest that you consult with a tax professional before making the final decision as the deductions may impact your tax obligations differently from your spouse's tax obligations.
Robert S. Grossman, Esq., 585 Stewart Avenue, Suite 300, Garden City, NY 516-745-1700. The above answer does not create an attorney/client relationship. This response is for informational purposes only, and is not intended to convey legal advice, and is intended to provide only general information. I am licensed to practice law in the State of New York. My practice is focused in the areas of Matrimonial/Family Law, Commercial Litigation, and Real Estate. If you require legal advice, please contact an attorney in your community. The question is limited and may not include facts which, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for legal advice from a licensed attorney that practices in the subject area in your state. The law varies from one jurisdiction to another, and changes from time to time.