Claim the child as a dependent

Normally, the parent with primary physical custody is the parent with the right to claim the children, if there is nothing in writing. My suggestion is to get a separation agreement stating that you claim one child while she claims the other, along with all the other issues that you have already settled.

Yes, there is much agreement that something is wrong with this system. You should consult an attorney to see where you stand with getting an agreement written up prior to filing for absolute divorce.

Agreed and thanks. What I was trying to see if correct was due to the following in the tax book (If a child’s parents are divorced or separated, only one parent can claim the child as a dependent. This is usually based on who provides the most support.

Generally, the parent who has custody of the child for the greater part of the year (the custodial parent) is considered the parent who provides more than half the child’s support - and claims the child for a dependent exemption on his or her tax return.

However, this can change in the following situations:

  1. The parent who does not have custody (the noncustodial parent) can be considered the parent who provides more than half the child’s support if the custodial parent completes Form 8332 (Release of Claim to Exemption) or signs a written statement saying that he or she will not claim the child as a dependent. The noncustodial parent must attach this statement to his or her return)

If you try to claim one child, and your ex has already claimed them, then you will get popped by the IRS. This happened to my brother. He had to pay BACK his refund. Of course he had already spent it and so he had to owe interest. Just don’t do it. Unless you have a written statement to back yourself up.

If there is no agreement regarding the dependency exemption it is claimed by the party with whom the minor children spend more time during the year. You should consult with a tax attorney to review your options.

Helena M. Nevicosi
Attorney with Rosen Law Firm

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Raleigh, North Carolina 27607
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Main Phone: (704)307.4600
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From what I understand my wife has filed her taxes as married filing single and has claimed both our kids on her taxes. We have been living apart since 2004 but do not have any separation agreement and not yet divorced. Cant I claim at least one of our kids since I have paid far more than what just the child support called for. She earns $50,000 a year and I earn $100,000 a year. Last year I paid $20,347 and since we did not have anything in writing I have to pay tax on all of the money. I would have thought that I really should claim both kids but she just seems to be moving on and when I ask anything she just tells me to talk with her lawyer which of course I cant do so I then have to pay a lawyer to write a letter. Something just seems to be wrong with the system. I am getting no where fast.