My ex and I are in the middle of a separation. We’ve both filed restraining orders, and she won’t agree to a 50/50 custody arrangement. We have a hearing set for the 6th. We were never legally married. In the past, she has claimed our son while I claimed a rental. But this year, I’m claiming our oldest son as well.
I’m wondering, in the absence of a formal custody agreement, who has the right to claim our two boys on our taxes? And if she claims both kids, will that affect my custody chances in court?
According to the IRS, the parent who has the child more than half the time can claim them on taxes. If there’s no agreement, it’s whoever files first.
The custodial parent should file an IRS form 8332 to release the child to the non-custodial parent for that year or future years.
In most cases, the courts want this to be shared, so if one parent claims first, the other can ask to divide it. But if one parent isn’t up to date with child support, it might go to the custodial parent.
I’d suggest each of you claim one child so you both get the head of household status. Also, keep in mind that if one of you makes over $200k, the child tax credit will phase out.
Follow the IRS rules on tax claims. Once you have a custody agreement, you’ll need to follow it. You might need to file an extra form if there’s a conflict between your agreement and the IRS rules.
Since you have a hearing in a week, both you and your ex should get together with your attorneys to figure out who will claim which child. If you can’t agree and your ex’s lawyer won’t let the judge decide at the hearing, your lawyer will need to file a motion.
Without a court order, it’s hard to stop the other parent from claiming the kids. My court order says who claims which child and that the other parent must sign a document to release their claim for taxes. I don’t have the order with me, though.
Without a custody agreement, wait until court for a decision. Usually, the parent with the kids for 6 months or more gets to claim them. Just wait until the hearing. I don’t understand why she won’t agree to 50/50—it seems like she’s after money.
IRS goes by who has had the child more. Did the kids live with you or your ex more in 2024?
If both claim the kids, IRS will check school or medical records to decide. Be careful because the parent who isn’t eligible may have to pay the refund back to the IRS.
@Gemma
That’s not exactly right. The IRS won’t get involved unless the refund is over $10,000. They’ll usually tell you to handle it with a judge. They’ll only accept the first tax return with the kid’s SSN.
@Gemma
I know the code says that, but in reality, the IRS doesn’t really do much unless there’s a big refund. It’s a civil matter to be handled by the courts.
Merit said: @Gemma
I know the code says that, but in reality, the IRS doesn’t really do much unless there’s a big refund. It’s a civil matter to be handled by the courts.
That’s strange because I’ve seen it happen before.