Claiming my ex with custody order in place

[Jovahutc]

My question I just want to know if I’m right about what I’m going to do. My ex and my child stayed with me all year until beginning of December she called the police on me and I went to jail. Ther has been a custody order in place since my child was 1 she is now 7. So I’ve been providing for her and my child all year she’s been a stay at home mom with no income. I’m going to claim her and my child beginning next year. But I think she is going to try to beat me to the punch. I am entitled to claim her correct ?

 

[quincy]

What is the name of your state?

 

[Jovahutc]

What is the name of your state?

Michigan

 

[LdiJ]

My question I just want to know if I’m right about what I’m going to do. My ex and my child stayed with me all year until beginning of December she called the police on me and I went to jail. Ther has been a custody order in place since my child was 1 she is now 7. So I’ve been providing for her and my child all year she’s been a stay at home mom with no income. I’m going to claim her and my child beginning next year. But I think she is going to try to beat me to the punch. I am entitled to claim her correct ?

Under the IRS rules you would definitely be eligible to claim your daughter. You meet all of the tiebreaker rules. However, you would have to be able to prove that she lived with you all year. What the IRS likes to use as proof, is outside records that show her living at your address. Things like school records, medical records, church records, daycare records etc.

If your ex did not work all year and had no income of any kind, it wouldn't benefit her to try to beat you to the punch. However, you really cannot claim your ex. She did not live with you for the full year that is required. Eleven months is not a full year.

 

[LdiJ]

What is the name of your state?

That is not really relevant for federal tax...and in term of dependents, all states pretty much follow the federal rules.

 

[Jovahutc]

Under the IRS rules you would definitely be eligible to claim your daughter. You meet all of the tiebreaker rules. However, you would have to be able to prove that she lived with you all year. What the IRS likes to use as proof, is outside records that show her living at your address. Things like school records, medical records, church records, daycare records etc.

If your ex did not work all year and had no income of any kind, it wouldn't benefit her to try to beat you to the punch. However, you really cannot claim your ex. She did not live with you for the full year that is required. Eleven months is not a full year.

She can’t claim herself she began working in December and all of her things are still here her mail is still coming here and I’ve been supporting her fully up until December. I would think I can claim her

 

[LdiJ]

She can’t claim herself she began working in December and all of her things are still here her mail is still coming here and I’ve been supporting her fully up until December. I would think I can claim her

She is not a dependent child. Dependent children only have to live with you for more than six months of the year. Non related adults must live with you for the entire 12 months.

If she began working in December and therefore will have some earned income for 2020, then she possibly could beat you to the punch and claim the child herself and benefit somewhat...not a lot, but somewhat. If that happens you would be equal on most of the tiebreaker rules but you would win because you have the higher income. You just might have to file a paper return rather than being able to file electronically.

 

[Jovahutc]

She is not a dependent child. Dependent children only have to live with you for more than six months of the year. Non related adults must live with you for the entire 12 months.

If she began working in December and therefore will have some earned income for 2020, then she possibly could beat you to the punch and claim the child herself and benefit somewhat...not a lot, but somewhat. If that happens you would be equal on most of the tiebreaker rules but you would win because you have the higher income. You just might have to file a paper return rather than being able to file electronically.

I’m thinking I’m going to do it electronically and beat her to the punch. I don’t even think she will have a w2. And I’m going to claim her and my child I think I am entitled to that. If she disputes which I doubt she will I’ll have proof

 

[Taxing Matters]

And I’m going to claim her and my child I think I am entitled to that. If she disputes which I doubt she will I’ll have proof

No, you are not entitled to claim either your ex-girlfriend or your child as your dependent.

As for your ex, she is not your child and thus you must meet the requirements of the qualifying relative test. Under that test, the only way that someone not related to you can be your dependent is if ALL the following are met:

1. She is a U.S. citizen or a U.S. resident (as defined for tax purposes;
2. She had to live in the same household with you FOR THE ENTIRE YEAR;
3. Her gross income had to be less than $4,200; AND
4. You had to provide more than half her support.

Your post implies that you stopped living with her at the beginning of December. If that's the case then you fail the second requirement because she had to live with you all year for her to qualify as your dependent. See IRS Publication 501 for the details.

Now let's look at the claim for your child. Under the facts you provided both you and your ex would qualify to claim your child as a dependent under the qualifying child test. But the law only allows one person to claim the dependent exemption. So if both of you claim the exemption for the child, the tax law provides tie breaker rules to determine which taxpayer may claim that exemption. The tie breaker rule that applies here is this, from Publication 501, page 16:

If the parents don't file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.​

​

(Bolding added). You indicated that both mother and child moved out in early December. That means the child will by the end of the year have lived longer with your ex than with you, since the child lived with your ex for the full year and with you just over 11 months. So I disagree with LdiJ that you would win the tie breaker based on having the the higher AGI. You only get to the AGI test if the child lived with you both the same number of days during the year.

So in short, given the facts as I understand them, you cannot claim either of them as your dependent. So there is no need to rush to file electronically first as there is nothing to "beat her to punch" over.

 

[Jovahutc]

No, you are not entitled to claim either your ex-girlfriend or your child as your dependent.

As for your ex, she is not your child and thus you must meet the requirements of the qualifying relative test. Under that test, the only way that someone not related to you can be your dependent is if ALL the following are met:

1. She is a U.S. citizen or a U.S. resident (as defined for tax purposes;
2. She had to live in the same household with you FOR THE ENTIRE YEAR;
3. Her gross income had to be less than $4,200; AND
4. You had to provide more than half her support.

Your post implies that you stopped living with her at the beginning of December. If that's the case then you fail the second requirement because she had to live with you all year for her to qualify as your dependent. See IRS Publication 501 for the details.

Now let's look at the claim for your child. Under the facts you provided both you and your ex would qualify to claim your child as a dependent under the qualifying child test. But the law only allows one person to claim the dependent exemption. So if both of you claim the exemption for the child, the tax law provides tie breaker rules to determine which taxpayer may claim that exemption. The tie breaker rule that applies here is this, from Publication 501, page 16:

If the parents don't file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.​

​

(Bolding added). You indicated that both mother and child moved out in early December. That means the child will by the end of the year have lived longer with your ex than with you, since the child lived with your ex for the full year and with you just over 11 months. So I disagree with LdiJ that you would win the tie breaker based on having the the higher AGI. You only get to the AGI test if the child lived with you both the same number of days during the year.

So in short, given the facts as I understand them, you cannot claim either of them as your dependent. So there is no need to rush to file electronically first as there is nothing to "beat her to punch" over.

I am sorry i think that is bull I’m going to claim them both because I am entitled.I provided for them both all year. Plus I have medical and school records that say the child was staying here and who would be watching her but her mother. So they were both staying with me

 

[Taxing Matters]

I am sorry i think that is bull I’m going to claim them both because I am entitled.I proceeded for them both all year.

Sorry, but regardless of what you think, the law is clear on what is required to claim dependents. You don't get to disregard the law and make a claim simply because you feel "entitled". Instead you have to meet the requirements that the law sets out for it, and I provided you what those requirements are. If you thing those requirements are unfair, write your representative and senators in the Congress and ask them to change the law to be more favorable to you. But until the law changes, you are stuck with what the current requirements are. Should you claim them and the IRS disallow your claim, you'd have to pay the extra tax, interest, and may get hit with a penalty of 20% of that tax, too, for negligence. And should the IRS decide fraud was involved — that you knew you were making an improper claim — you could be hit with a fraud penalty of 75% of that tax. While not very common, there is a slight chance of criminal prosecution, too. So disregarding the law here has potential consequences for you.

 

[LdiJ]

I’m thinking I’m going to do it electronically and beat her to the punch. I don’t even think she will have a w2. And I’m going to claim her and my child I think I am entitled to that. If she disputes which I doubt she will I’ll have proof

Why in the world would you think that she wouldn't have a W2 if she is working in December? I think that you are an idiot for insisting

No, you are not entitled to claim either your ex-girlfriend or your child as your dependent.

As for your ex, she is not your child and thus you must meet the requirements of the qualifying relative test. Under that test, the only way that someone not related to you can be your dependent is if ALL the following are met:

1. She is a U.S. citizen or a U.S. resident (as defined for tax purposes;
2. She had to live in the same household with you FOR THE ENTIRE YEAR;
3. Her gross income had to be less than $4,200; AND
4. You had to provide more than half her support.

Your post implies that you stopped living with her at the beginning of December. If that's the case then you fail the second requirement because she had to live with you all year for her to qualify as your dependent. See IRS Publication 501 for the details.

Now let's look at the claim for your child. Under the facts you provided both you and your ex would qualify to claim your child as a dependent under the qualifying child test. But the law only allows one person to claim the dependent exemption. So if both of you claim the exemption for the child, the tax law provides tie breaker rules to determine which taxpayer may claim that exemption. The tie breaker rule that applies here is this, from Publication 501, page 16:

If the parents don't file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.​

​

(Bolding added). You indicated that both mother and child moved out in early December. That means the child will by the end of the year have lived longer with your ex than with you, since the child lived with your ex for the full year and with you just over 11 months. So I disagree with LdiJ that you would win the tie breaker based on having the the higher AGI. You only get to the AGI test if the child lived with you both the same number of days during the year.

So in short, given the facts as I understand them, you cannot claim either of them as your dependent. So there is no need to rush to file electronically first as there is nothing to "beat her to punch" over.

Sorry TM but I completely disagree with you about the length of time that the child lived with the parents. This issue is something that is hammered home in continuing education on a regular basis...and hammered home in due diligence continuing ed. I have also been through this issue with dozens of our firm's client's in paper audits over the past few years.

Yes, I reviewed the publication and it's wording, and I do find that troublesome, since it seems to contradict well established due diligence guidelines regarding the claiming of children. However, I am not going to accept it because again, it contradicts the serious due diligence guidelines in continuing ed.

 

[Ohiogal]

Taxing Matters is an attorney. LD is a "tax professional". Let's see who is more educated on the subject of taxes? Oh yeah... the person who practices TAX LAW.

 

[Jovahutc]

No, you are not entitled to claim either your ex-girlfriend or your child as your dependent.

As for your ex, she is not your child and thus you must meet the requirements of the qualifying relative test. Under that test, the only way that someone not related to you can be your dependent is if ALL the following are met:

1. She is a U.S. citizen or a U.S. resident (as defined for tax purposes;
2. She had to live in the same household with you FOR THE ENTIRE YEAR;
3. Her gross income had to be less than $4,200; AND
4. You had to provide more than half her support.

Your post implies that you stopped living with her at the beginning of December. If that's the case then you fail the second requirement because she had to live with you all year for her to qualify as your dependent. See IRS Publication 501 for the details.

Now let's look at the claim for your child. Under the facts you provided both you and your ex would qualify to claim your child as a dependent under the qualifying child test. But the law only allows one person to claim the dependent exemption. So if both of you claim the exemption for the child, the tax law provides tie breaker rules to determine which taxpayer may claim that exemption. The tie breaker rule that applies here is this, from Publication 501, page 16:

If the parents don't file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.​

​

(Bolding added). You indicated that both mother and child moved out in early December. That means the child will by the end of the year have lived longer with your ex than with you, since the child lived with your ex for the full year and with you just over 11 months. So I disagree with LdiJ that you would win the tie breaker based on having the the higher AGI. You only get to the AGI test if the child lived with you both the same number of days during the year.

So in short, given the facts as I understand them, you cannot claim either of them as your dependent. So there is no need to rush to file electronically first as there is nothing to "beat her to punch" over.

The child has lived with me longer so how did the child live with my ex longer? The child lived with me. That doesn’t make sense.

 

[Jovahutc]

Why in the world would you think that she wouldn't have a W2 if she is working in December? I think that you are an idiot for insisting


Sorry TM but I completely disagree with you about the length of time that the child lived with the parents. This issue is something that is hammered home in continuing education on a regular basis...and hammered home in due diligence continuing ed. I have also been through this issue with dozens of our firm's client's in paper audits over the past few years.

Yes, I reviewed the publication and it's wording, and I do find that troublesome, since it seems to contradict well established due diligence guidelines regarding the claiming of children. However, I am not going to accept it because again, it contradicts the serious due diligence guidelines in continuing ed.

And I dnt care what you think? They lived with me practically the whole year. All the support was me. TM makes no sense about the child the child lived with me more than 11 months the mother has no income so how would I not be able to claim the child??