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Who claims the children in a seperation and/ or divorce situation on income tax returns?

Mechanicville, NY |

Seperated from husband for over a year but not divorced. I have primary custody, we have joint legal custody, parenting time as we agree. I think I should claim them because I have custody, but also because I provide Medicaid for them and Food Stamps! Wouldn't I get in trouble for claiming them for Medicaid and food stamps but not both the kids on income tax return?

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Attorney answers 3


Unless you have an agreement otherwise, you claim them since you have custody. If you have a separation agreement, have that reviewed by an attorney to determine who claims the children on their taxes.


Best if there's some form of agreement between you and husband regarding claiming the kids but in the absence of that, either of you can claim them, but not both. And keep in mind that it's the state that's providing Medicaid and food stamps so that will not be dispositive in terms of the support test for dependents. You'll want to consult the IRS guidelines for claiming dependents ( or speak with a tax attorney.

Good luck.

Evan A. Nielsen is licensed to practice law in California and handles federal tax matters throughout the U.S. 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.


For a child who, for more than one-half of the year, is in the custody of one or both divorced or legally separated parents, or parents (regardless of marital status, including unmarried parents) who live apart at all times during the last six months of the year, who together provide over one-half the child’s total support during the calendar year, the parent having custody for the greater portion of the year is deemed as the child’s “custodial parent” and on that basis will generally have the exclusive right to claim the dependent child tax exemption. However, in such case, the custodial parent may waive and release the right to claim the exemption, pursuant to procedures spelled out in the applicable law and federal regulations, thereby allowing the exemption to be claimed by the parent who had custody for the lesser portion of the year, i.e., the “noncustodial parent.”

Please be advised that the information contained herein is provided for educational purposes only and is not intended to be legal advice. Further, in the absence of a signed retainer agreement or letter of engagement between the recipient hereof and the author, the transmission of this information does not create an attorney-client relationship.