Child credit/protective order no divorce

[jn_monty]

What is the name of your state (only U.S. law)? MARYLAND

I currently put a protective order against my spouse, my spouse however has a child that I have been claiming on my taxes due to marriage. With us now being seperated as of the end of November 2015 through the order am I still allowed to claim my wife and her child on my taxes for this coming tax year? I have been the sole bread winner of the household and am of course the head of household for this entire tax year. I was told through the protective order it would start the separation process but am not sure how accurate this is but no divorce papers have been filed either way.

 

[Ohiogal]

What is the name of your state (only U.S. law)? MARYLAND

I currently put a protective order against my spouse, my spouse however has a child that I have been claiming on my taxes due to marriage. With us now being seperated as of the end of November 2015 through the order am I still allowed to claim my wife and her child on my taxes for this coming tax year? I have been the sole bread winner of the household and am of course the head of household for this entire tax year. I was told through the protective order it would start the separation process but am not sure how accurate this is but no divorce papers have been filed either way.

Is your wife going to be filing her own tax return? That is something a court should determine. And realize your tax return is not yours alone -- especially if there is a refund. So don't plan on spending any refund until a court determines how it should be divided.

 

[jn_monty]

No she did not work this entire tax year so there is nothing for her to claim. I was just curious if I am even allowed to claim both of them since we are still married for now.

 

[LdiJ]

What is the name of your state (only U.S. law)? MARYLAND

I currently put a protective order against my spouse, my spouse however has a child that I have been claiming on my taxes due to marriage. With us now being seperated as of the end of November 2015 through the order am I still allowed to claim my wife and her child on my taxes for this coming tax year? I have been the sole bread winner of the household and am of course the head of household for this entire tax year. I was told through the protective order it would start the separation process but am not sure how accurate this is but no divorce papers have been filed either way.

No you are not "head of household". Head of household is a designation for single people with dependents. You are married therefore your choices are married filing jointly (only if your wife agrees to file a joint return with you) or married filing separately.

Hopefully you have not been filing as head of household and claiming your wife as a dependent, because if you have, you have been filing your taxes completely wrong.

Now, on to 2015. If your wife chooses to file a joint return with you then you can also claim her child as your dependent. Technically, you could also claim her child on a married filing separate return, as long as the child is not a qualifying child for either of her parents...but that might cause you some grief down the road.

 

[jn_monty]

No you are not "head of household". Head of household is a designation for single people with dependents. You are married therefore your choices are married filing jointly (only if your wife agrees to file a joint return with you) or married filing separately.

Hopefully you have not been filing as head of household and claiming your wife as a dependent, because if you have, you have been filing your taxes completely wrong.

Now, on to 2015. If your wife chooses to file a joint return with you then you can also claim her child as your dependent. Technically, you could also claim her child on a married filing separate return, as long as the child is not a qualifying child for either of her parents...but that might cause you some grief down the road.

The head of household part was me just emphasizing that I am the sole bread winner. So by her not working the entire year can she really file for anything? My plan was/is to file as married filing separately but with claiming him since I had been taking care of him this entire year. I was under the assumption that because they (her son) had been living with me up until 2 weeks ago it would make it null and void for anyone but her to claim him. Again she did not work so there wouldn't be no purpose for her to file correct?

 

[Ohiogal]

The head of household part was me just emphasizing that I am the sole bread winner. So by her not working the entire year can she really file for anything? My plan was/is to file as married filing separately but with claiming him since I had been taking care of him this entire year. I was under the assumption that because they (her son) had been living with me up until 2 weeks ago it would make it null and void for anyone but her to claim him. Again she did not work so there wouldn't be no purpose for her to file correct?

Your assumption is incorrect.

 

[LdiJ]

The head of household part was me just emphasizing that I am the sole bread winner. So by her not working the entire year can she really file for anything? My plan was/is to file as married filing separately but with claiming him since I had been taking care of him this entire year. I was under the assumption that because they (her son) had been living with me up until 2 weeks ago it would make it null and void for anyone but her to claim him. Again she did not work so there wouldn't be no purpose for her to file correct?

There would be nothing for her to file for, but that would not guarantee that you would not have a problem if you claimed her child. For example, she would have the right, under the law, to release the child's exemption to the other parent. Usually what happens in cases like these is that no one files a tax return at all until there are divorce/separation agreements in place determining what should happen with taxes. Sometimes parties agree to file jointly, and sometimes they do not.

 

[jn_monty]

There would be nothing for her to file for, but that would not guarantee that you would not have a problem if you claimed her child. For example, she would have the right, under the law, to release the child's exemption to the other parent. Usually what happens in cases like these is that no one files a tax return at all until there are divorce/separation agreements in place determining what should happen with taxes. Sometimes parties agree to file jointly, and sometimes they do not.

Very interesting. So until I can find an appropriate divorce lawyer to help me in my case I will not have a solution to this since I cannot discuss this with her personally since I put the protective order against her.

 

[Zigner]

Very interesting. So until I can find an appropriate divorce lawyer to help me in my case I will not have a solution to this since I cannot discuss this with her personally since I put the protective order against her.

You can't claim her child without her consent this year...

 

[LdiJ]

Very interesting. So until I can find an appropriate divorce lawyer to help me in my case I will not have a solution to this since I cannot discuss this with her personally since I put the protective order against her.

Yep...you do have that problem. I hope that the protective order was truly necessary. Otherwise you may find that you did yourself more harm than good.

 

[Zigner]

There would be nothing for her to file for, but that would not guarantee that you would not have a problem if you claimed her child. For example, she would have the right, under the law, to release the child's exemption to the other parent. Usually what happens in cases like these is that no one files a tax return at all until there are divorce/separation agreements in place determining what should happen with taxes. Sometimes parties agree to file jointly, and sometimes they do not.

Because the OP and his wife aren't filing a joint return, and because the child is living with the other party, the other party would need to release her exemption to the OP.

(That's how I read it...)

 

[jn_monty]

Yep...you do have that problem. I hope that the protective order was truly necessary. Otherwise you may find that you did yourself more harm than good.

Yes it was very necessary and that was me choosing the lesser evil for her by not sending her to jail for domestic abuse.

 

[jn_monty]

Thank you everyone for your help this definitely saved me from a much larger headache at the beginning of next year.

 

[LdiJ]

Because the OP and his wife aren't filing a joint return, and because the child is living with the other party, the other party would need to release her exemption to the OP.

(That's how I read it...)

Its murkier than that...because the rules don't depend on where the child lives at the time that the return is being filed, but rather where the child lived for the majority of the tax year...and all of the rest of the tests. I won't go into all of the nitty gritty because it won't help the OP, but its not that hard and fast. Also, form 8332 is only to release an exemption to a non-custodial parent. Its not for use in any other circumstance. In all other circumstances the qualifying child tests and the tiebreaker rules are what matters.

 

[Zigner]

Its murkier than that...because the rules don't depend on where the child lives at the time that the return is being filed, but rather where the child lived for the majority of the tax year...and all of the rest of the tests. I won't go into all of the nitty gritty because it won't help the OP, but its not that hard and fast. Also, form 8332 is only to release an exemption to a non-custodial parent. Its not for use in any other circumstance. In all other circumstances the qualifying child tests and the tiebreaker rules are what matters.

If the child is presently living with the mother, then the child has lived with the mother for more of the tax year than with the OP.