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Timothy L | I have a tax question. Here's the situation.? |
Me and my ex-wife has joint custody with 2 kids. On the divorce papers it says that I claim 1 child and she claims the other. However this year she did not have a job so she can't file her taxes. Does anybody know if I can claim both children as dependants. They meet all the qualifications to get earned income credit and child tax credit, because they lived with me over half of the year, too. I asked my tax preparer last year and they couldn't give me a straight answer. She is not remarried, but she does live with someone. I don't think he could claim them because they are not married. Does anybody know the answer. |
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Cupid
|
You can claim both, but she has to agree to it. She should actually still file her taxes even if she did not make any money in 2007. She would still get EIC for that child and get money back anyways.. maybe not in your best interest to let her know that unless you are a good, nice, honest man. The person she lives with also cannot claim them as dependents.. they are not his spouse, parent or child. Hope this helps. |
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sneezy7231969
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Call a CPA or better yet, call the IRS. They will answer this question for you |
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K
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I don't see any reason why you shouldn't. |
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dragonwych
 |
As your wife has nothing to file a tax return with, just ask her to release the other exemption to you for one year only, using Form 8332. There is no reason she wouldn't, especially if you offer her half of the difference the exemption makes on your return.
Whether or not you can claim the second child's exemption, you can still take them both for the purposes of the earned income credit. You can take the child tax credit only for a child whose exemption you have claimed, regardless of where the child lived. |
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travelguruette
 |
She could still file but she herself must be a dependent of someone else if she has no income. If she is a dependent of someone then the children cannot be her dependents. The IRS will allow the divorce papers as proof but the state you are in my not care about the divorce papers. CA doesnt. You should be able to claim them.
Qualifying Children
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.
Six Criteria for Qualifying Relatives
To be claimed as a qualifying relative, the person must meet five criteria:
Not a qualifying child - The dependent cannot be a qualifying child of another taxpayer.
Gross Income – The dependent earns less than the personal exemption amount during the year. For 2007, this means the dependent earns less than $3,400.
Total Support – You provide more than half of the dependent's total support during the year.
Relationship – You are related to the dependent in certain ways.
Joint Return – If the dependent is married, the dependent cannot file a joint return with his or her spouse. |
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carrie p
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That is tricky. It seems a bit unfair to let you get two this year and for her to get only one next year if she works, per the divorce ruling. However, it seems unfair to you to pass up this chance. I would speak with her and ask her opinion. In the end, it may just be something that you agree to together. And just to be cautious, get it in writing, signed and dated.
I am definitely not a lawyer or attorney. You may want to consider consulting someone. |
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v b
|
The divorce papers do not trump reality.
If the children are living with you, then you are the custodial parent. The IRS normally defaults the exemption to the custodial parent. (Even if she is living with a boyfriend, they didn't live with him all year, so he's got zero claim on the exemptions.)
The divorce decree essentially states that you are agreeing not to claim the children and your spouse can show this by attaching either a form 8332 or a copy of the divorce decree. Even with the form 8332, child care and EIC stays with the custodial parent. With the 8332, the exemption and child tax credit move to the non-custodial spouse, but nothing else.
Here's the problem, you signed the kids away in that legal document. You cannot undo that waiver at the present time. (Their are some proposed regulation changes, but they have not taken effect yet. If they were to pass today, you could notify her of the decision to undo the waiver--which would put you in contempt of court--and it would take effect in tax year 2009.) |
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Charlie & Angie G
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If the children live with you, then yes. The only way that your ex can dispute is to also claim the child and send her divorce decree in that states she can claim him.
Regardless if she claims him or not, whoever the child lives with is entitled to the Earned Income Credit, Head of Household filing status, and the Dependent Care Credit. See pub 501 |
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