can he file them?

What is the name of your state?
texas-my ex is wanting to file our children on his taxes. the kids live with me and have always. i do not want him to file them and it is not stated that he can do so in our divorce decree. can he do this?-lilmomma

[JETX]

If he provides 50.1% or more of their support, he can claim them on his taxes.

[abezon]

If the divorce decree is silent, the children can only be claimed by their custodial parent. That's you. The 50.1% rule would apply if you & he had never been married. Just to be on the safe side, file electronically as soon as you can. If you file first, he can't claim the kids without the IRS looking at the situation.

[JETX]

"If the divorce decree is silent, the children can only be claimed by their custodial parent."

**Many people assume that the Custodial Parent ALWAYS gets to use the children as deductions on IRS returns. Well....there are THREE cases where this is simply not true. The first one would be when a non-custodial parent is given that right by the courts. If you were married to the custodial parent you can ask the judge to assign you the right to use the children as deductions on your tax forms. This is not granted in every case but does happen. If there is nothing stated in your divorce decree about this subject then you may assume that the custodial parent retains this privledge exclusively. The second case is when the custodial parent VOLUNTARILY signs form 8332 thereby giving up her/his right to you. This form must be signed each and every year and mailed in along with your other pertinent tax forms at the time of filing. The third is when two parents have NEVER been married to each other. Such as in a casual relationship or just live-ins. (even one night stands will qualify) In these cases the parent paying more than 50% of the child's(ren's) upkeep gets to claim the deduction. You must be able to show conclusively that you have provided more than the 50% required. This can be done using excessive child support payments which more than adequately cover the cost of raising the child or through a combination of child support and "gifts" to the child. Anyway you can add it up so that it equals more than 50% will work."

DILLARD v. COMMISSIONER., 47 TC Memo 919 (1984). This US Tax Court case involved a dispute between Dillard (a non-custodial father of a child born out of wedlock) and the IRS as to whether Dillard was entitled to claim his daughter as his dependent under IRC section 152(a). Specifically, the question was whether Dillard's payments for child support, medical expenses, health insurance and life insurance, all for the benefit of the child, amounted to more than half of the child's "total support." The Tax Court concluded that Dillard had in fact provided more than one-half of the total support was therefore entitled to the dependency exemption. TheTax Court recognized that although the child was in the mother's custody, that fact was of no consequence because Dillard and mother had never been married to one another. As explained in Note 3, "Since [Dillard] and [mother of the child] were never married, the provisions of section 152(e), relating to a child of divorced or separated parents, do not apply."

The IRS provides a 'flow-chart' to see which parent is allowed to claim the deduction. It is located at:
[url]http://www.irs.gov/forms_pubs/graphics/15006i01.gif[/url]
For additional information (IRS Publication 504), go to:
[url]http://www.irs.gov/formspubs/page/0,,id%3D103196,00.html#T16[/url]