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Can my ex-husband claim the kids on his taxes, even though he's a non-custodial parent?
My ex and I are having an argument...Our divorce decree states that for the first year, he would get to claim the kids on his taxes, and for every year after, I get to claim them. Now, he realizes that he will have to pay tax, instead of getting a return, and he's telling me that he's going to file for a modification so that he gets to claim one of them each year. 1. Can he even claim them on his taxes if I am the custodial parent? 2. How would the court change this if he doesn't go to an attorney?
Additional Details
We're into the second year of the divorce. He's also threatening to lower my child support if I don't let him claim one of the kids. He only has the boys every other weekend.

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2009-03-10 03:14:33 +0000
I don't think so... The custodial parent usually gets to claim them unless otherwise agreed upon in the divorce. I really don't see how he could have that changed without you agreeing.

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2009-03-10 03:14:54 +0000
does he get over night visits with them because if he does then they will argue that he spends the same amount of money on them as you do and make it seem like its only fair even if its not

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2009-03-10 03:13:26 +0000
He told you he's filing for a modification to the order. Until the court allows him to claim one or more children, he can't.

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2009-03-10 03:15:18 +0000
Just cause your custodial parent, doesn't mean he can't claim one or both.

Why not just agree between the 2 of you for him to claim one and you to also.

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2009-03-10 03:21:43 +0000
NO he can not and once the decree is set that way....

Since you are main support HE can not get that tax statis.........Period...Unless HE is supporting them 6 months out of the year !!

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2009-03-10 03:19:42 +0000
The "law" is what is in your decree!
You do what it states - he can do whatever he wants. He can then answer to the IRS when they find out he's broken the law.
My wife did the same thing and found herself sitting in front of a tax judge trying to answer for her sidetrack.
I don't know what it cost her - but I didn't do anything wrong.
(get it?)

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2009-03-10 03:22:47 +0000
if the divorce decree states that he can claim them the first year, then of course he can. I've never heard of a divorce decree that would allow that. But he cannot claim them on his taxes, unless you allow him to. And even with an attorney, I don't think the courts would allow him to claim one, while you are the custodial parent. He's trying to scare you into giving him his way. Call his bluff. Tell him no, you will not allow it. And go ahead and hire a lawyer after he pays his taxes. Listen, He can't do a damn thing with out going through the courts. He's bluffing you.

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2009-03-10 03:14:37 +0000
He cannot legally claim them. He has to take you to court and get the judge to change the divorce decree. So, you go ahead and claim them and let the IRS deal with it when they catch up to him.

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2009-03-10 03:17:57 +0000
~ If he pays child support, he is supporting them, whether or not he is the custodial parent.

~ He cannot start claiming them on his taxes without going to court to have the divorce and custody settlement revised.

~ He probably should have a lawyer, but people are allowed to represent themselves in court.

~ My sister and her ex-husband had it set up where they alternated claiming their child on their taxes, even though my sister was the custodial parent.

EDIT: My sister's ex NEVER took their son for visitation, he simply paid child support every month, so according to the courts this entitled him to claim their son on his taxes every other year. By paying child support, he was in a way, supporting him, though custodial parents, often end up paying more. If your ex- takes this to court chances are fairly good the court will revise your divorce decree, so that he can claim the children every other year. Consult a lawyer in the meantime.

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2009-03-10 03:14:44 +0000
1. Can he even claim them on his taxes if I am the custodial parent?
If this is the first year, yes... since your divorce decree states he can. If you claim them in the first year and he disputes it, the divorce decree will back him up and you will be penalized for having claimed them.

2. How would the court change this if he doesn't go to an attorney?
He doesn't necessarily have to hire an attorney to file a motion. He can do it on his own as long as he goes through all the right processes. Chances are, however, that he'll need an attorney and will find that it costs more than it's worth in the long run.

Edit - If one tax season has already passed and he claimed them last year then he can't legally claim them this year. He will have to get the order amended. I wouldn't worry about threats of him reducing child support. He can't legally do that on his own without being in contempt of the court. You might remind him of that next time he threatens it. If he mentions any of it again, tell him that you're not going to discuss it with him. Tell him he needs to file the motions through the courts and let them decide. He's trying to intimidate you into agreeing to let him claim one child without going to court. You don't have to let him. Tell him to take it to court, and let him know that you'll report him for nonpayment if he starts messing with child support without a court order. Chances are that he'll back down.

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2009-03-10 03:15:09 +0000
you dont have to hacve custody to claim someone but he can get in serious trouble if he claims them w.o working sometihng out w u and the court

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2009-03-10 03:13:34 +0000
Yes ma'am as long as he pays child support.

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2009-03-10 03:35:10 +0000
The 1st year....yes...per decree....This is the type of thing(s) that occur when the "fog" of divorce is in progress. When the fog "clears" then people start to see/perceive they might have made mistakes during the original battle and start looking for "ins" and "outs" of various issues where money is/could be involved. Sometimes money isn't even the issue....It is a dirty trick(s) to make the custodial parent miserable for the "joy" of it.
If he gets the modification approved and "can prove" he pays like more than 50% of the kids' support....I would think he could claim them for the entire year....then you will be up schitt creek without a paddle.
It may/will become very important to keep ALL receipts to PROVE your expenses too for the kids.
I don't know how he can change/lower an Ordered Child Support by the courts without a hearing to get it changed.
Lots of propaganda to "play" with your mind....but do stay on top of it. He was married to you, so he knows your weaknesses.....emotionally, etc., and will "TRY" you through these....
Fight for your rights too....Good Luck....!!

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2009-03-10 03:26:44 +0000
If he claimed them last year, you get to claim them this year. I agree that each of you claiming one would make more sense overall. File your taxes as stated on the decree and let him file for the modification if he wants....

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2009-03-10 03:31:00 +0000
You can claim income tax deduction for the qualifying child,
A child is considered to be a qualifying child if the child meets all of the following conditions:
Relationship — The child must be your child or stepchild (whether by blood or adoption), foster child, sibling or step sibling, or a descendant of one of these.
Residence — The child must live with you for more than half the tax year. Some exceptions apply for children of divorced or separated parents, kidnapped children, temporary absences, and for children who were born or died during the year.
Age — The child must be younger than 19 at the end of the tax year, or younger than 24 if a full-time student for at least 5 months of the year. Children who are permanently and totally disabled at any time during the year qualify regardless of age.
And you have to provide more then half of his living expenses

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2009-03-10 03:18:02 +0000
When I got divorced our divorce decree said that I would claim one of the kids and he would claim the other as long as he was current on his child support payments. I had full custody, he didn't pay his child support so he didn't get to claim one of them. It's usually that way. A judge can modify the order. But, he has to be supporting them in order to claim one.

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