If your divorce decree specifies who's to claim the dependnts then that will control. Otherwise the IRS has tiebreaker rules that determine who's entitled to claim the child(ren). In your case, just because your ex has already filed does not mean you can't claim them if you're entitled to do so. In the event the IRS asks for clarification, you and your ex will both have to provide documentation to the IRS demonstrating that you're entitled to claim the dependent. If you ex can't and you can, you win.
Hope that helps.
Evan A. Nielsen is licensed to practice law in California. The information provided here is for educational purposes only and is not intended as legal advice for a particular matter. This response does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult an attorney.
Being able to claim a dependent on a tax return is tied to a number of related tax benefits. Taxpayers who claim dependents can claim an additional personal exemption for each dependent. Also, taxpayers may be eligible to claim the child tax credit, the child and dependent care tax credit, and the earned income tax credit. Unmarried taxpayers who support a dependent may be eligible to file as head of household.
With all these tax benefits tied to claiming a dependent, it is important to make sure that you really can claim the dependent on your tax return.
Basically, you can claim a dependent if the person meets one of two criteria:
• qualifying child or
• qualifying relative.
To be claimed as a qualifying child, the person must meet four criteria:
Relationship — the person must be your child, step child, adopted child, foster child, brother or sister, or a descendant of one of these (for example, a grandchild or nephew).
Residence — for more than half the year, the person must have the same residence as you do.
Age — the person must be
• under age 19 at the end of the year, or
• under age 24 and a be a full-time student for at least five months out of the year, or
• any age and totally and permanently disabled.
Support — the person did not provide more than half of his or her own support during the year.
The qualifying child must live with you for more than half the year. More than half a year means, at minimum, six months and one day. If you share custody, you may want to keep a log of where the child spends the night in your calendar or day planner.
The new rules state that the qualifying child must not provide more than half of his or her own support. This is different from the old rules. Under the old rules, the taxpayer had to provide over half the support for the child. The change makes it easier for families relying on public assistance, charity, and gifts from family members to claim a dependent.
You might still be able to claim the child as a qualifying relative if the child does not meet the criteria to be a qualifying child. But the qualifying child rules always prevail over the qualifying relative rules. So you'll want to make sure the dependent would not qualify as a qualifying child for someone else before claiming a qualifying relative on your tax return.
Tie-Breaker Tests for Claiming a Qualifying Child
If two or more taxpayers claim a dependent as a qualifying child in the same year, the IRS will use the following tie-breaker tests to determine which taxpayer is eligible to claim the dependent. The tie-breaker tests are listed in order of priority.
The child will be the qualifying child of:
1. the parent,
2. the parent with whom the child lived for the longest time during the year,
3. if the time was equal, the parent with the highest adjusted gross income,
4. if no taxpayer is the child's parent, the taxpayer with the highest adjusted gross income.
A child can be the dependent of at most one taxpayer. If you qualify to claim the child, then be ready to submit documentation to the IRS to support your claim.
Chances are the child will spend at least one day more with one parent than the other parent, since there are usually 365 days in a year. Consider keeping a log of where the child spends the night.
If the child spends exactly equal time with both parents, the parent with the higher income will be able to claim the dependent. Both parties can prevent an IRS audit by reviewing these tie-breaker rules in advance, and agreeing on who gets to claim the dependent.
The non-qualifying parent can claim the dependent ONLY IF the qualifying parent releases his or her claim to the dependency exemption. You accomplish this by using IRS Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents.
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