Married filing seperately

[Texas_P1]

What is the name of your state?TX
We have temporary order in place with me being the pri******* and we both have joint conservatorship. My STBX moved out of the house in June and left the 3 girls and her son with me. She took her son down to her parents in August. She now has standard visitation wehere she gets them 1st/3rd/5th weekend each month. My question is how do we (I) go about filing taxes this year. My wife doesn't make much normally around 10K and she has no federal taxes taken out of her checks as it comes out of mine and we normally get a refund of about 2k-3k. Can I file as married filing separately? I want to do this as she wants half of any refund we get. I think she should not as since she pays in no federal taxes she should not get half of what I am paying in. And can I claim her son as we (I) have done the past 10 years? And are there any other issues that might arise that I do not know about?

Thanks

 

[seniorjudge]

What is the name of your state?TX
We have temporary order in place with me being the pri******* and we both have joint conservatorship. My STBX moved out of the house in June and left the 3 girls and her son with me. She took her son down to her parents in August. She now has standard visitation wehere she gets them 1st/3rd/5th weekend each month. My question is how do we (I) go about filing taxes this year. My wife doesn't make much normally around 10K and she has no federal taxes taken out of her checks as it comes out of mine and we normally get a refund of about 2k-3k. Can I file as married filing separately? I want to do this as she wants half of any refund we get. I think she should not as since she pays in no federal taxes she should not get half of what I am paying in. And can I claim her son as we (I) have done the past 10 years? And are there any other issues that might arise that I do not know about?

Thanks

https://forum.freeadvice.com/showthread.php?t=296917

double post

 

[Texas_P1]

https://forum.freeadvice.com/showthread.php?t=296917

double post

Yes that was the point as I wasn't sure whch forum to post in as it relates to both tax issues and divorce issues? And I stated in 2nd post that I had as well posted it in Tax forum also.

 

[abezon]

Unless the order states differently, you can file separately & claim all kids, since they lived with you longer than they lived with her. (The new definition of qualifying child helps you.) I suggest you get to a tax pro ASAP & try to beat your ex to the IRS. Be sure to efile! Do you have any proof that your stepson lived with you longer than with her?

If she moved out in June & never lived with you again, & you paid over 1/2 the cost of keeping up your home, you can file as head of household, & leave her to file as married separate. You'll also be able to claim all credits, like child care and EIC if you're eligible. You'll get a nice refund in your name only & she'll owe about $200. Oh darn.

 

[LdiJ]

Unless the order states differently, you can file separately & claim all kids, since they lived with you longer than they lived with her. (The new definition of qualifying child helps you.) I suggest you get to a tax pro ASAP & try to beat your ex to the IRS. Be sure to efile! Do you have any proof that your stepson lived with you longer than with her?

If she moved out in June & never lived with you again, & you paid over 1/2 the cost of keeping up your home, you can file as head of household, & leave her to file as married separate. You'll also be able to claim all credits, like child care and EIC if you're eligible. You'll get a nice refund in your name only & she'll owe about $200. Oh darn.

You need to re-read the new rules. He can't claim mom's son. 1) Mom's son now becomes a non-relative (without mom on the return) and 2) the new tiebreaker rules would also apply.

Mom, also is entitled to be treated as unmarried for tax purposes.

 

[Snipes5]

Actually, once they married, relationships to others stay, even if the marriage is dissolved. This goes for inlaws as well as children. And they are still married anyway.

Snipes

 

[abezon]

You need to re-read the new rules. He can't claim mom's son. 1) Mom's son now becomes a non-relative (without mom on the return) and 2) the new tiebreaker rules would also apply.

Mom, also is entitled to be treated as unmarried for tax purposes.

1. No, the son is still a stepson, and that type of relationship is not terminated by divorce. Plus, they're still married, so the stepson is a qualifying child for the stepdad. The stepson may not even be a QC for his mother, depending on how much time total he spent with her.

2. At any rate, under the tie-breaker rules, when both taxpayers are parents, the parent with whom the child resided longer is the winner. The boy lived with stepdad for 8 months & with mom for 5 months & with grandparents for 4 months.

3. Unless mom had some other kid that lived with her for over 6 months & maintained a home for that kid, mom cannot file as head of household.

 

[LdiJ]

1. No, the son is still a stepson, and that type of relationship is not terminated by divorce. Plus, they're still married, so the stepson is a qualifying child for the stepdad. The stepson may not even be a QC for his mother, depending on how much time total he spent with her.

2. At any rate, under the tie-breaker rules, when both taxpayers are parents, the parent with whom the child resided longer is the winner. The boy lived with stepdad for 8 months & with mom for 5 months & with grandparents for 4 months.

3. Unless mom had some other kid that lived with her for over 6 months & maintained a home for that kid, mom cannot file as head of household.

I disagree. First, the child is his mother's qualifying child. It doesn't matter how long he lived with her. He is her qualifying child under the rules for separated and divorced parents. (and that has nothing to do with her current marriage...its her separation/divorce from the child's father that counts) However, since they separated in June, he did live with mom for 6 months....and may have even longer if mom spent any time at the grandparents home.

"Stepson" is not an option under "relationship". He is not the husband's son.
The husband cannot claim him as a son without mom on the return. Therefore he could only be claimed as a qualifying relative...and then only if he lived in stepdad's home for the entire year. Go look at the new rules again. My office just spent over a week verifying this kind of thing.

Stepdad is NOT the child's parent. Therefore would not be given status as a parent in the tiebreaker rules. Think about this carefully? If a stepparent could be given that kind of status then a child could have as many as 4 "parents" who would all be entitled to claim that the child was their qualifying child.

 

[abezon]

I disagree. First, the child is his mother's qualifying child. It doesn't matter how long he lived with her. He is her qualifying child under the rules for separated and divorced parents. (and that has nothing to do with her current marriage...its her separation/divorce from the child's father that counts) However, since they separated in June, he did live with mom for 6 months....and may have even longer if mom spent any time at the grandparents home.

"Stepson" is not an option under "relationship". He is not the husband's son.
The husband cannot claim him as a son without mom on the return. Therefore he could only be claimed as a qualifying relative...and then only if he lived in stepdad's home for the entire year. Go look at the new rules again. My office just spent over a week verifying this kind of thing.

Stepdad is NOT the child's parent. Therefore would not be given status as a parent in the tiebreaker rules. Think about this carefully? If a stepparent could be given that kind of status then a child could have as many as 4 "parents" who would all be entitled to claim that the child was their qualifying child.

There is no difference between a blood child & a stepchild in section 152 of the tax code, which covers dependents.

The law, as amended by H.R.1308 Working Families Tax Relief Act of 2004 states:

IRC sec 152 (c) Qualifying Child- For purposes of this section --
(1) In General- The term 'qualifying child' means, with respect to any taxpayer for any taxable year, an individual--
(A) who [is the taxpayer's child, sibling, stepsibling, or descendent thereof]
(B) who has the same principal place of abode as the taxpayer for more than one-half of such taxable year,
(C) who meets the age requirements of paragraph (3), and
(D) who has not provided over one-half of such individual's own support for the calendar year .....

IRC sec 152(f) [definitions for purposes of qualifying child or qualifying relative]
(1) Child Defined-
(A) In General - The term 'child' means an individual who is--
(i) a son, daughter, stepson, stepdaughter of the taxpayer, or
(ii) an eligible foster child of the taxpayer
(B) Adopted Child- ... a legally adopted individual of the taxpayer ... shall be treated as a child of such individual by blood.

======================================================

THUS, the stepson is likely not his mother's QC, since they shared a principal place of abode for less than 6 months. How long he lived with mom does matter -- in fact, it's an element of being a QC. (It does not matter for purposes of determining whether he is a qualifying relative of mom.)

The boy is a QC of his stepfather. He meets the age, relationship, & residency tests. Actually, the stepfather appears to be the only person for whom the boy meets the residency test. The fact that one person is a blood parent & the other is a stepparent is irrelevant. Congress did not differentiate between the two relationships.

Even if the boy spent enough time with mom to get over the 'more than half the year' requirement for a QC, he still spent more time with stepdad. Therefore, the tie-breaker rules will favor stepdad.

Under the rules for separated or divorced parents, the 'custodial parent' is the parent with whom the child lived for the longer period of time during the year. Since the boy lived with his stepfather for about 8 months, stepdad is the CP. As such, stepdad gets to claim the kids unless mom gets a court order to the contrary.

BTW, under the tax code, a child can have more than 2 parents. Parental relationships established by marriage are not terminated by divorce or separation.

 

[LdiJ]

There is no difference between a blood child & a stepchild in section 152 of the tax code, which covers dependents.

The law, as amended by H.R.1308 Working Families Tax Relief Act of 2004 states:

IRC sec 152 (c) Qualifying Child- For purposes of this section --
(1) In General- The term 'qualifying child' means, with respect to any taxpayer for any taxable year, an individual--
(A) who [is the taxpayer's child, sibling, stepsibling, or descendent thereof]
(B) who has the same principal place of abode as the taxpayer for more than one-half of such taxable year,
(C) who meets the age requirements of paragraph (3), and
(D) who has not provided over one-half of such individual's own support for the calendar year .....

IRC sec 152(f) [definitions for purposes of qualifying child or qualifying relative]
(1) Child Defined-
(A) In General - The term 'child' means an individual who is--
(i) a son, daughter, stepson, stepdaughter of the taxpayer, or
(ii) an eligible foster child of the taxpayer
(B) Adopted Child- ... a legally adopted individual of the taxpayer ... shall be treated as a child of such individual by blood.

======================================================

THUS, the stepson is likely not his mother's QC, since they shared a principal place of abode for less than 6 months. How long he lived with mom does matter -- in fact, it's an element of being a QC. (It does not matter for purposes of determining whether he is a qualifying relative of mom.)

The boy is a QC of his stepfather. He meets the age, relationship, & residency tests. Actually, the stepfather appears to be the only person for whom the boy meets the residency test. The fact that one person is a blood parent & the other is a stepparent is irrelevant. Congress did not differentiate between the two relationships.

Even if the boy spent enough time with mom to get over the 'more than half the year' requirement for a QC, he still spent more time with stepdad. Therefore, the tie-breaker rules will favor stepdad.

Under the rules for separated or divorced parents, the 'custodial parent' is the parent with whom the child lived for the longer period of time during the year. Since the boy lived with his stepfather for about 8 months, stepdad is the CP. As such, stepdad gets to claim the kids unless mom gets a court order to the contrary.

BTW, under the tax code, a child can have more than 2 parents. Parental relationships established by marriage are not terminated by divorce or separation.

All I can say is that I am glad that if you are prepared to defend your clients(and accept the attendent liability) in tax court under those premises then more power to you.

Our practice isn't prepared to do that. We spend a great deal of time checking and rechecking.....our practice does not agree with you.