How can I Figure Out if my Ex or Myself Claim the Children on our Federal Income Tax Return?

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“I live in Texas and have a question about claiming both my kids on my 2007 federal income tax return. We officially became divorced in Feb 2008, however in 2007 I received no child support whatsoever from my ex for the months of June through the end of the year. We officially sold our house in June and I moved my kids to a new place that I had started renting in January 2007. Prior to that, we shared staying with them, mostly they were with me in the shared house as my ex is a commercial pilot and is often away. So once we sold the house and went our respective ways, him out of state, he refused to pay child support stating that he didn’t feel like it and later his argument became that I was dragging things out. Long story short, I depleted my savings and now our agreement states that we will each take a deduction of one child, alternating them each year. I don’t feel this is right for 2007 and don’t know what to do. Should I just file married filing separately for 2007 and take the deduction for both kids, and what if he has already filed and took the deduction for one the kids? Do I have the right to ask him for the back child support if he had the nerve to deduct one? One thing to note is, I am the custodial parent and I have not signed any IRS paperwork stating he can legally take the deduction of any of the kids for 2007. Thanks for your advice.”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

Who gets to take the Federal deduction is controlled almost entirely by who has primary physical custody *on paper*. So long as you have no court order ordering you to share the deduction in any fashion, or other agreement to share the deductions, the primary custodial parent gets the deduction.

Here, however, it is a bit confusing, as you say that you have an agreement – but not whether it is written, or a court order. You add that you have not signed any paperwork with the IRS, but if you have a court order (or an agreement formalized by the court) then it sounds as if you may be required to share the exemptions with your ex.

You should have your paperwork and situation reviewed by a family law attorney, to be safe – don’t take any action on your own without determining first whether it is within your rights.



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Author: House Attorney

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