You can claim the children, provided it is not stipulated in any State court documents that you cannot. Follow any state court documents to the letter. In the absence of this, the parent that has the child for the majority of the year gets to claim them. But you have to prove they live with you. Court documents and letters from a school near the home pertaining to the child are very good evidence. But you have no control over whether your ex files her taxes correctly. You merely have a duty to do yours correctly. So if you know you are right, I would claim the child.
The only thing that really works against you is that in our society the mother always seems to have the presumption of custody. I would not be the least bit surprised if they contacted you as opposed to her and made you prove it. It isn't supposed to work that way, but my guess is it will. All you can do is be ready to prove it.
I agree with Mr. Larson. You will probably be audited if you claim your children because the social security numbers of your children will show up on two tax returns, and the IRS computers pick up on this. You will need to substantiate with documents that the children live with you most of the year, and you contribute to their support more than your ex.
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. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mr. Smith is licensed to practice law throughout the state of California with offices in Los Angeles County. He is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. His phone number is 323-292-4116 or his email address is email@example.com.
I agree with my colleagues on this question. One additional point, if your children are in fact with you "most of the time" you may want to bring this matter before the Judge in your dissolution case. This is a common issue that can cause much anger and frustration. Therefore, making sure there is an order outlining the duties, responsibilities and benefits (tax deduction) exists will make your life (and your kid's life) much easier. Divorce is hard enough.
I hope this helps.
Steven A. Leahy
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
When you claim them, the IRS will send a letter to you & your ex asking for facts to support your positions. You will have to gather the evidence necessary to prove that the kids stayed with you longer than her.
Get the custody agreement and any proof you have that the children stayed with you for the majority of the year. You can use medical records, school records, insurance or church records showing the residence and longevity of the stay.
You will have Appeal options or Tax Court if the case isn't resolved to your satisfaction.
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