How to determine who claims dependent?


We have been separated for 3 yrs (this coming April). The first year of sep we filed jointly, as well as last year. He moved at the very end of last year to GA. We can’t file jointly this year and he wants to claim our child on his returns. He pays me minimal amount of child support which is court ordered. We drew up and had notorized our Sep Agreement, but this issue was NOT part of it.

How do I know who has the right to claim our child. He lives me with 365/yr except for school holidays, so I would think ‘legally’ my STBX has no right to claim our child as a dependent… but since we are separated and not divorced, I am not sure how that will all work. Thanks!


If the child lives with you primarily, you are entitled to claim him as a dependant, regardless of whether or not this is outlined in any agreement or Order. If your ex claims him as well, the IRS will perform and audit, and your ex will be in violation of the IRS regulations.


I have a similar situation however it’s reversed. The 3 children live full time, except for the 8 weeks a year we have visitation, with the ex-wife. I understand she has the right to claim them despite the fact we provide 80% of all their financial needs because they live with her. However it came out in court last year that she hasn’t filed taxes since 2003. SInce she hasn’t claimed them on her taxes can we or can the step-father claim them on his since they are living under his roof with their mother?



Yes. If she agrees and signs the proper IRS form to allow your husband to claim them.


I would like to know who would have rights to claim my son? As I do pay child support but there has been no agreement as to who has custody at this time.


The parent who has primary physical custody ( the one who the child lives with) is entitled to claim the child.


If I have had my son since feb 2008 and ex only had visitation, who is allowed to claim our son if there is no order? Ex says he is because he pays support.

Also our taxes were denied twice yesterday because the IRS said that someone else claimed my children. No one can claim them but for me. I called their dad and they did not even do taxes yet. I call the ex and he did his taxes and he admitted to claim our son but I do not think he cleared the children out and claimed them too. I know at the end of H&R Blocks online filing it shows everything before sendng them in E-File. I think he did this on purpose. What do I do and do I get statements from our taxe place and the IRS for court?

Thank you


If the child has been living with you primarily you are entitled to claim him. You may order your tax returns from the IRS.


I must have missed something-- I was under the impression that Pursuant to Internal revenue Code §152(e)(1)(B) the custodial parent is presumptively entitled to claim the children as dependents but…
The non-custodial parent (defined as the parent who is not the custodial parent) can claim the exemptions in two circumstances: (1) where the custodial parent releases the claim to the exemption for the year; or (2) the non-custodial parent contributed over one-half of the support for the dependent(s) during the calendar year. Where there is no agreement or waiver with respect to which parent gets the exemption and where a child resides with each parent an equal number of nights during the calendar year, the parent who has a higher adjusted gross income would be deemed to be the custodial parent and entitled to the exemption.
SO if 2 above is the situation and the other parent only makes 13,ooo a year then the can the non custodial parent claim the child as the dependednt since the non custodial parent pays well over 1/2 of the childs total costs per year- especially since the custodial parent does NOT have a mortgage.
Please help becasue I am tired of getting taken to the cleaners when it was my ex who did wrong yet she has custodial privaledges and I am paying thru my front teeth- what if in 2 above the non custodial parent does not have equal nights per year due to locality issues


If you do not have an equal number of nights, I would say number 2 does not apply. I suggest you consult with your tax preparer on this one.