I’m currently going through separation with my ex, and we have dual restraining orders with no custody agreement. In previous years, she claimed one of our sons while I claimed rental income. This year, she intends to claim both boys. Who has the right to claim them on taxes without a custody agreement? Will her claiming them affect my custody dispute advantage?
Follow IRS rules regarding claiming dependents. Once you have a custody agreement, follow it and provide necessary forms if it conflicts with IRS rules.
Your attorneys need to decide on claims before your hearing. If not agreed, your attorney should file a motion.
Clove said:
Your attorneys need to decide on claims before your hearing. If not agreed, your attorney should file a motion.
They can’t be married; they’re not legally married.
Without a court order, it’s hard to prevent the other parent from claiming them. My order specifies which child each parent can claim.
Whoever has the children for at least 183 overnights generally claims them.
Dahlia said:
Whoever has the children for at least 183 overnights generally claims them.
I didn’t realize they lived together throughout the year and she supported them.
Until court custody is settled, the parent with more than 6 months typically claims. Waiting for the court date is advisable.
Case said:
Until court custody is settled, the parent with more than 6 months typically claims. Waiting for the court date is advisable.
Your last sentences were unclear. We lack information on the case.
@Quinlan
Agreed, many threads go off-track.
IRS rules say the parent with the child the most, even by one day, can claim.
IRS considers physical overnights for claim eligibility. Be cautious; conflicting claims may require repayment.
Keira said:
IRS considers physical overnights for claim eligibility. Be cautious; conflicting claims may require repayment.
In practice, IRS rarely intervenes unless refunds exceed $10,000 or involve fraud.
@BrianCopland
Incorrect, I had to submit records. My refund wasn’t close to $10,000.
@BrianCopland
I’ve seen IRS act in such cases.
Keira said:
@BrianCopland
I’ve seen IRS act in such cases.
Usually, they don’t unless significant sums or fraud is evident.
Keira said:
@BrianCopland
I’ve seen IRS act in such cases.
Usually, they don’t unless significant sums or fraud is evident.
Unusual; I’ve seen it differently.
@Keira
So have I, rarely. Usually involves high-income parents or clear fraud.
@BrianCopland
My preparer and personal experience align with IRS procedures. 
Keira said:
@BrianCopland
My preparer and personal experience align with IRS procedures.
I had to provide court docs; IRS made a parent refund 3 years’ taxes with interest.