| |
You are here: Experts > Business > Corporate Law > Tax Law (Questions About Taxes) > Claiming a dependent after a divorce.
Expert: Helen P. O`Planick, EA
Date: 9/11/2008
Subject: Claiming a dependent after a divorce.
Question
QUESTION: My ex husband and I were separated in the middle of June, 2007. I have sole custody of three children from another marriage. The children and I left to live with my parents at that time. In January, I filed taxes married filing separately, and claimed my children. I did not claim any medical expenses or anything further, as my parents were supporting us and I worked on the farm to help them as I attended school. I was awarded financial aid and have since accepted it to continue with my schooling.
Today, my ex emailed to state that he was filing taxes for last year and claiming myself and the children as his dependents. He claims that he can do this? Is this a valid claim?
Help!
Teresa
ANSWER: No, he can't do it. And don't worry. Since you have already filed, the IRS will reject his claim.
Helen, EA in PA
---------- FOLLOW-UP ----------
QUESTION: This is what I found on another website, which would seem to support his point of view??
Teresa
Jan 14 2008
These rules enable you claim a child as a dependent.
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.
Some Tips about Claiming Qualifying Children
The qualifying child must live with you for more than half the year. More than half a year means, at minimum, six months and one day. If you share custody, you may want to keep a log of where the child spends the night in your calendar or day planner.
The new rules state that the qualifying child must not provide more than half of his or her own support. This is different from the old rules. Under the old rules, the taxpayer had to provide over half the support for the child. The change makes it easier for families relying on public assistance, charity, and gifts from family members to claim a dependent.
You might still be able to claim the child as a qualifying relative if the child does not meet the criteria to be a qualifying child. But the qualifying child rules always prevail over the qualifying relative rules. So you'll want to make sure the dependent would not qualify as a qualifying child for someone else before claiming a qualifying relative on your tax return.
Tie-Breaker Tests for Claiming a Qualifying Child
If two or more taxpayers claim a dependent as a qualifying child in the same year, the IRS will use the following tie-breaker tests to determine which taxpayer is eligible to claim the dependent. The tie-breaker tests are listed in order of priority.
The child will be the qualifying child of:
the parent,
the parent with whom the child lived for the longest time during the year,
if the time was equal, the parent with the highest adjusted gross income,
if no taxpayer is the child's parent, the taxpayer with the highest adjusted gross income.
Some Additional Tips for Tie-Breaker Situations
A child can be the dependent of at most one taxpayer. If you qualify to claim the child, then be ready to submit documentation to the IRS to support your claim.
Chances are the child will spend at least one day more with one parent than the other parent, since there are usually 365 days in a year. Consider keeping a log of where the child spends the night.
If the child spends exactly equal time with both parents, the parent with the higher income will be able to claim the dependent. Both parties can prevent an IRS audit by reviewing these tie-breaker rules in advance, and agreeing on who gets to claim the dependent.
The non-qualifying parent can claim the dependent ONLY IF the qualifying parent releases his or her claim to the dependency exemption. You accomplish this by using IRS Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents (PDF document). You can indicate on this form for which year or years you agree to release the exemption. You can also revoke the release if you later change your mind.
ANSWER: You don't need to worry about the rules you pulled up, seriously.
The kids not only live with you, they are yours, not his. Did he legally adopt them?
Helen
---------- FOLLOW-UP ----------
QUESTION: No, he has no legal ties to them and they don't want any, either.
As far as being bold, I have no problem with that as long as I know I am in the right. He has millions, which he kept, I did not even get attorney fees paid in the settlement. I know I have been more than fair. All he has ever loved is his money, and that is the issue now.
Thank you so much for your time!!!
Answer
Since he never adopted them, he is not a parent and has no right to claim them. "The child will be the qualifying child of: the parent"
(and I copied this from your link).
Girl, go for it and tell him to stick it. And if he files with them, he is committing fraud and IRS does not take kindly to fraud.
Let me know how it goes. I care.
Helen
Add to this Answer
Ask a Question
|
|
