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Who claims our child for 2008 taxes in this situation?

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brumboz

Junior Member
What is the name of your state (only U.S. law)? Kentucky

My wife and I have been separated since October 08. We have one child (age 3). We have not yet finalized our divorce or settled on custody/visitation. The only day we have had in court thus far was an emergency hearing because she was without any visitation from me. The judge ruled (in November) I would have standard visitation and she would have him the majority of the time until we could have a full hearing (date hasn't arrived yet).

Obviously, our divorce is not finalized and she and I are not on speaking terms at this time.

How should I file (single? married filing separately?) this year and which of us should claim the child?
 


Ohiogal

Queen Bee
Any refund is marital property. What you should do is file married filing jointly and SPLIT EQUALLY the refund.
 

LdiJ

Senior Member
What is the name of your state (only U.S. law)? Kentucky

My wife and I have been separated since October 08. We have one child (age 3). We have not yet finalized our divorce or settled on custody/visitation. The only day we have had in court thus far was an emergency hearing because she was without any visitation from me. The judge ruled (in November) I would have standard visitation and she would have him the majority of the time until we could have a full hearing (date hasn't arrived yet).

Obviously, our divorce is not finalized and she and I are not on speaking terms at this time.

How should I file (single? married filing separately?) this year and which of us should claim the child?
Your choices are married filing separately or married filing jointly.

The tiebreaker rules (under federal tax law) would give the exemption to whichever one of you had the higher AGI unless one of you could prove that they had the child move overnights than the other.

Its also highly possible that a judge would order the two of you to file jointly for 2008 if one of you asks for that.

A joint return and splitting the refund would actually probably be the wisest move for 2008.
 

mistoffolees

Senior Member
What is the name of your state (only U.S. law)? Kentucky

My wife and I have been separated since October 08. We have one child (age 3). We have not yet finalized our divorce or settled on custody/visitation. The only day we have had in court thus far was an emergency hearing because she was without any visitation from me. The judge ruled (in November) I would have standard visitation and she would have him the majority of the time until we could have a full hearing (date hasn't arrived yet).

Obviously, our divorce is not finalized and she and I are not on speaking terms at this time.

How should I file (single? married filing separately?) this year and which of us should claim the child?
If she had more overnights than you (which appears to be the case from your description), then she gets the deduction. You would also not qualify as head of household since your wife is entitled to the child's deduction.

That means you have to file as married. If your stbx is not even speaking to you, that means that you'll probably be filing as married, filing separately (you will need her SSN to do this). Financially, you'd probably be better off filing as married, joint, but if she won't cooperate, that's going to be tough.
 

brumboz

Junior Member
The tiebreaker rules (under federal tax law) would give the exemption to whichever one of you had the higher AGI unless one of you could prove that they had the child move overnights than the other.
I have the highest AGI for 2008, however since our separation she has the most overnights. The only issue I'm wondering about on that decision would be that she withheld visitation of the child to me for a period of around 4 weeks. Without that time period, the overnights would be fairly even.
 

mistoffolees

Senior Member
I have the highest AGI for 2008, however since our separation she has the most overnights. The only issue I'm wondering about on that decision would be that she withheld visitation of the child to me for a period of around 4 weeks. Without that time period, the overnights would be fairly even.
If she had more overnights, then she gets the deduction (unless you have a Form 8332 signed by her). If you think she withheld visitation, that is not a tax issue and is irrelevant to the question you asked. You filed as married. Ideally, the two of you could save money by filing as joint (and sharing the refund), but if you're not speaking, you may be stuck filing Married, separate. You will need her SSN and will probably need a tax expert to help with some of the deduction issues.
 

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