Claiming Children on Tax Return

[mcwjjm]

What is the name of your state? Ohio. I seperated with the mother of our two children at the end of November [2005]. I provided almost all of their support as the mother worked maybe three weeks of 2005. Since we split I've been paying her support till our CS hearing. About a month ago she told me to "claim the kids because she couldn't since she didn't work enough to file a return". So I did. She called again asking about how I was going to split it. I said 50/50. She didn't protest. Then last week she left a message saying that since my support payment was lost in the mail [now received] that she would have to "file an instant return".

She apparently tried to file and when she discovered that I claimed the kids on my return she called and asked why? I told her it was her idea of me claiming the kids but now she's regretting that and wishes she'd claimed them and feels I don't even have "rights" to claim them [or keep any monies]. She's going to protest my return with the I.R.S.. I claimed one of our children on my 2004 return and turned the refund over to her. We were never married. I'm confused about her filing when she said "she couldn't" due to insufficent work history in 2005. Who's right? Should I be concerned?

 

[tstevans]

claiming children

Did the children live with you atleast 6 months out of the year while you supported them? If so usually it is who ever filed 1st get's the credit. Is there a court order on custody, that could make a difference as well and do you have proof that you have supported them?

 

[stealth2]

And if they lived with her, did she sign a Form 8332 (I think that's the right form #)?

 

[CarrieT]

Did the children live with you atleast 6 months out of the year while you supported them? If so usually it is who ever filed 1st get's the credit. Is there a court order on custody, that could make a difference as well and do you have proof that you have supported them?

No that is not correct information. It is NOT 'whoever filed first'.
LDiJ had an excellent post on this:

https://forum.freeadvice.com/showthread.php?p=1290225#post1290225

She will be able to better clarify, however as she is expert at tax stuff.

Carrie

 

[LdiJ]

What is the name of your state? Ohio. I seperated with the mother of our two children at the end of November [2005]. I provided almost all of their support as the mother worked maybe three weeks of 2005. Since we split I've been paying her support till our CS hearing. About a month ago she told me to "claim the kids because she couldn't since she didn't work enough to file a return". So I did. She called again asking about how I was going to split it. I said 50/50. She didn't protest. Then last week she left a message saying that since my support payment was lost in the mail [now received] that she would have to "file an instant return".

She apparently tried to file and when she discovered that I claimed the kids on my return she called and asked why? I told her it was her idea of me claiming the kids but now she's regretting that and wishes she'd claimed them and feels I don't even have "rights" to claim them [or keep any monies]. She's going to protest my return with the I.R.S.. I claimed one of our children on my 2004 return and turned the refund over to her. We were never married. I'm confused about her filing when she said "she couldn't" due to insufficent work history in 2005. Who's right? Should I be concerned?

She had to have worked more than 3 weeks in 2005....or she wouldn't have been getting enough of a return to even cover the cost of filing an "instant return" let alone enough of a refund to make it worth while.

Therefore, its going to boil down to the tax regs.

The tax regs give the exemption to the parent who has primary custody of the child, and the IRS defines that as the parent with whom the child primarily lived for 2005.

If the children primarily resided with both of you then the tiebreaker rules go into effect....and in that instance the exemption would go to the parent with the higher Adjusted Gross Income...which I assume would be you if the children primarily lived with both of you.

You stated earlier that you told mom you would share the refund with her 50/50....have you done that?

If you claimed EIC for the kids it would be best if you can compromise with mom. You would probably be ok with the IRS (if the children primarily lived with both of you, as a family, and you can prove that) but if you can avoid an IRS investigation it would be wiser. Its sometimes difficult to prove that the children lived with you in an unwed situation.

 

[mcwjjm]

Thanks

>>did she sign a Form 8332<<

No, but neither did she last yar when I claimed one of our children. She just gave me the verbal "ok" to claim both this year and now apparently has changed her mind.

>>Did the children live with you at least 6 months out of the year while you supported them?<<

Yes, they have always lived with me till we split up @ the end of November
[2005].

I'm guessing she let some relative [mom] try to claim them. As far as the "regs" I met all the "pre-qualifiers" to claim them.

>>You stated earlier that you told mom you would share the refund with her 50/50....have you done that?<<

No, I havent received the funds yet.

Thanks again!

 

[mcwjjm]

She really doesn't have a case

Based on my case where the children lived with both parents between January-late November of 2005 and the mother didn't work I would be entitled to the entire tax return due to the "tie-breaker" - support and the higher income? Just the opposite of her opinion on who's entitled. I would have no problem proving "residency" of our children. I claimed the oldest on my taxes in 2004 [same address as 2005]. So if she contacts the IRS and tells them the truth about our situation they'll tell her she doesn't have a case, right? Thanks.

 

[NCP Dad in TN]

I was in a similar situation a few years ago. Our Order said that the Mother would get the tax deductions for the children. Only there was one problem... My ex did not work, could NOT claim the kids, so she approached me to strike a "deal". She'd "let" me claim the kids if I gave her half of my tax return.

Long story short, I ended up petitioning the courts to review the Order and rule that as long as she was unemployed, I could claim the children on my taxes. After all, I had SUBSTANTIAL visitation with the children and was providing 41% of my income in support.

The judge ruled that I COULD claim the children on my taxes. *BUT* I was to have my tax return figured both ways... what I would get/owe if I did NOT cllaim the children, and what it would be if I DID claim the children... and my ex receives 41% of the difference.

I never understood WHY my attorney thought that was a victory... after all, my ex was still getting money she didn't earn or deserve. But finally it was explained to me that it was a GOOD thing. See, the courts automatically assume that the person receiving child support is going to claim the kids on their taxes. They ASSUME the CP is employed. So when they calculate child support, they are using figures on the assumption that the person PAYING support is not getting a tax break, so they adjust their income and thus the child support obligation accordingly.

Now, if the courts were to rule that the NCP can use the children as tax deductions, then that affects his taxable income I think, so Child Support could possibly go UP. Therefore, when the judge ruled that I could claim the kids yet I had to give her a portion of the difference, what he was doing was protecting ME. He knew that my child support obligation would go up if I was allowed to keep all of the tax return.

By giving my ex a portion of it, she got hers and I got mine, and it's all good.

Ok, back to YOU... I was told by the people who prepare my taxes that if NO ONE else is claiming the kids, then the IRS won't care. They just don't want the kids to be claimed TWICE. If she isn't filing, or can't file, you won't get in trouble. My ex tried to report me to the IRS for "fraudently" claiming the kids but since she couldn't even produce a W2 I never even heard from them.

I think your ex CAN file for EIC, but not if YOU did, too. And from what I hear, the IRS monitors the EIC thing VERY carefully.

Hope this works out. Please keep us posted.

 

[mcwjjm]

Follow Up

I spoke with the IRS today and was informed that because the mother moved out 6 weeks before the end of the year that the children spent the majority of the year with her and that the higher income rule wouldn't come into effect. Even if it was just one [1] more day, she would still be entitled to claiming them / the refund. We worked out an agreement where she get's 80% of the benefit I received for claiming them. Better than nothing.