Your Life

Your Life

Major life milestones often have a major tax impact. Changes in your marital status, having a baby or adopting a child can have significant impact on your taxes. This is the place to ask questions about dependents, real estate, and other various scenarios that play a significant role in what taxes you pay.

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Pioneer
Posts: 1
Registered: ‎09-12-2017

Can I claim dependents married filing seperately?

Hi

 

I filed for divorce November 2016 and moved out. I earned 80K wife earned 20K. I found out she had nothing withheld from her paycheck. I finally got her to come across with tak info for 2016 (nice, right?) - If I fill out a joint return we end up owing 4K - I am wondering if I file separately, can I claim the kids since I was the major bread earner?

 

Thanks

 

 

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Tax Pro
Posts: 5,536
Registered: ‎02-23-2016

Re: Can I claim dependents married filing seperately?

Hi craynernh,

 

 

Welcome to the H&R Block community.

 

So when it comes to divorce there are a lot of tax rules.  I'll kind of lay everything out for you so that you'll have a guide for the future as well as for your current question.

 

So if both of you qualify to claim the kids under the general qualifying child rules (which I've provided below) then we go to the tiebreaker rules (provided below after the general rules).  Assuming that both of you meet the general requirements, the first tiebreaker (when both parties are parents) is the amount of time spent with each parent.  If the kids lived with their mother for more nights during the year then she is the custodial parent and has the higher right to claim them regardless of anything else.  The opposite is true if they lived with you for more nights during the year.  If the kids lived with each of you for an equal number of nights then the parent with the greater adjusted gross income (you) has the higher right to claim them.

 

With all of that said, if you've agreed or should you agree among each other or through the court to rotate years claiming the kids or something of that nature then the custodial parent must provide the non-custodial parent with a signed copy of Form 8332 which releases the kids' exemptions for the years in which the non-custodial parent is to claim them.  Without a signed copy of Form 8332 the non-custodial parent cannot claim the kids regardless of what the divorce or separation agreement says (this would be different if the divorce had been finalized before December 31, 2008.  This means that if you are the custodial parent your spouse will not be able to claim the kids' exemptions unless you provide her with a signed copy of Form 8332 (no exceptions).

 

If you lived together for all of 2016 but file separately then with you having the higher adjusted gross income the right to claim would go to you.  However, if you separated before the end of the year then you would have to follow through with all of the rules below to see who has the higher right since the kids would probably have lived with one of you for more nights then the other.

 

QUALIFYING CHILD REQUIREMENTS

In order to claim a child as your qualifying child the child must:

  • be related to you
  • live with you for more than half of the year
  • provide less than 50% of his or her own support
  • not have filed a joint return with another taxpayer
  • be under age 18, or under age 24 if in school full time

 

TIEBREAKER RULES

If all of the general requirements are met by more than one person then this set of rules comes into play.  The tiebreakers (in order) are:

  1. The parent has the higher right to claim.
  2. If both parties are parents then the parent with whom the child lived for the greater number of nights during the year has the higher right to claim.
  3. If the child lived with both parents for the same number of nights during the year then the parent with the higher AGI has the higher right to claim.
  4. If neither party is a parent then the party with the higher AGI has the higher right to claim.
  5. If a parent is eligible to claim the child but no parent actually claims the child then the party with the highest AGI who's AGI is higher than any parent has the higher right to claim.

 

So I have a question for you to kind of start getting this figured out.  Did you live together for the entire year in 2016 or did you separate?  If you separated, who did the kids stay with?

 

Louis,

Senior Tax Advisor (Tampa, FL)