Claiming children as dependents


#1

If it is not specified in the agreement/order, than the parent that has more overnights gets to claim the child(ren). Even if he/she has just 1 more overnight/year. However, I believe no one other than the biological parent can claim the child (ie.)Mother has more overnights but is a stay at home mom—her new husband cannot claim the child(ren) unless the biological father permits it.

I hope this made sense.


#2

I pay 600$ every two weeks and have to pay 3000$ to the IRS in april!! Seeing that I pay her more a month than she makes you would think that I’d be able to claim them! I am a man and we all know what the courts think about men that support there children and have a good job!!!The sex more than 4 times a year is worth it!!!


#3

This is usually spelled out in the agreement or final custody order. My husband and his ex each file one of their children to be fair since they share joint custody with equal time. I know in reality, it’s a matter of who gets their taxes filed first. The IRS doesn’t care who files the children as long as only one person is claiming them. You can file step-children, children, nieces, nephews, as long as they have lived with you over 6 months of the year and no one else is claiming them until the age of 18 or 21 (possibly 24) if they are full time students. You can file grandparents, foster children, adoptive children, and siblings as long as they are your dependents and no one else can claim them and they are not filing taxes and claiming themselves. If you put the children on your form and file and then she sends in her taxes, they will hold hers or possibly both since there is a duplicate SSN for a dependent. If mom is a stay at home mom her husband would file married joint and could claim the children if they are not already claimed by the father. If either parent is not remarried they would file head of household and list the children unless the other has already filed them. You need to agree on it and it needs to be put into the separation agreement or have it added to the final custody order.


#4

That’s the way that my boyfriend and his ex do it with their girls since they alternate weeks and have equal time. He takes one and she takes the other. On the other hand, I’m being threatened by my ex. My daughter is 19 and a sophomore in college. She doesn’t have a bedroom at his house nor has she ever spent a night with him since we split up in July 2004. She’s always lived with me. In our sep agreement, HE had it put in there that he would pay her first 3 years of college and I would pay the 4th. I didn’t ask for that, but I knew when he put it in there something would happen to change his tune. He paid her freshman year balance, but financial aid was figured on my income and therefore she got lots of grants and scholarships plus she’s on a partial soccer scholarship too. I had to cash in my 401K in order to live on my own and pay off my car and some credit cards that I inherited in the sep/divorce. When financial aid was filed on my income this year, on paper it appeared that I had gotten one helluva raise so therefore, NOT as many scholarships and grants were awarded so his out of pocket expense went up several thousand dollars. He has raised holy hell with my daughter over this. He even tried to take out a loan in her name with him as the co-signer which really made me mad when I found out because she already has a federal student loan in her name. Well, his credit is horrible because of his gambling addictions, filing chapter 7, foreclosure on the house, etc and he got turned down as a co-signer. The denial letter was sent here to my house and that’s how I found out he was trying to do this. He lives with a very rich woman that he met while traveling for his job(when we were married I might add). He somehow convinced her to move down here, buy a $300K house (she paid cash my kids tell me), buy him a brand new Harley…well, you get the picture…she’s a stupid fool in my book and I’m sure she hasn’t a clue to his past problems with $$. He makes a very very good salary and doesn’t have to pay a dime to live so I definitely don’t feel sorry for him that he’s got to pay a little bit extra for our daughter’s 2nd year of college. Anyway, got off track…He told my daughter on the day that she registered for classes and he finally paid the bill for the first semester that if I didn’t let him claim her on his taxes then she would have to come home from college. I can’t believe he said this to his own daughter, but claiming her on his taxes is NOT going to happen and he can forget it. I’m already in a mess with the IRS over having to cash in my 401K from last year and it will take me years to ever pay them off. I would imagine that he could try and claim her, but I think in the end that I will win that battle.


#5

According to IRS Publication 504, “Divorced or Separated Individuals” (2005), the custodial parent usually receives the exemption(s) for the dependent child as far as federal taxes are concerned. A court order or agreement between the parties may, of course, specify which party is to receive the exemption(s).

North Carolina follows the federal rules for exemptions for dependent children. See NC Department of Revenue Form 401, “Individual Income Tax Instruction for Form D-400” (2005).

almostdone is correct. If there’s no agreement or order addressing the tax exemption issue, the party with the most overnights gets to claim the child(ren). The fact that a parent may be paying child support does not, by itself, entitle him/her to claim the children as exemptions.


#6

Welcome to the new socialist movement in America. Granted, you pay the taxes on the child support that is deducted from your paycheck, but that money is still included as “income” if you need to file for food stamps, government assistance, etc. However, if both of you claim the children on your taxes, the IRS will investigate and try to determine who has the right to claim the kids. This can backfire on you though. See if the ex is willing to at least let you claim one of the kids.


#7

Dear Mr. Replacable:

Greetings. You need to speak with an accountant or CPA about this. Basically though, the parent with the majority of the time with the children gets the tax deduction, unless specified otherwise in the order or separation agreement. Thank you and good luck.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#8

At least in NC it is an unfair system. For example, even though my kids basically live with me at least one month out of each summer, I pay out of pocket for camps, summer tutoring, etc. and my ex claims it as a deduction on her taxes because she can claim them as dependents. I imagine this is illegal, but she seems to get away with it.


#9

Thanks for the replies. Looks like I need to negotiate.

We currently have joint custody but the kids have spent a few more nights with her this year than me since I have to be out of town quite a bit. She is working part time and I make a pretty good income so I hope she will do the right thing. I pay the health insurance and child support, seems like the right thing to do.

Thanks again for the replies. Sorry we have to be here.


#10

Dear Mr. Replacable:

You can go ahead and have it placed in your agreement that you can claim the children, and/or, ask the court to grant you the deduction.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#11

Hello. I’ve read that in other states if someone is paying child support they also get to claim the children on taxes.

Is that the case in North Carolina? It was not specifically addressed in our separation agreement but it would make sense.

Thanks !