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.
04-08-2017 08:30 PM
My wife and I are separated since February of last year and she took my 10 yr old to Mexico with her with my written consent. We did not do a legal separation since a lawyer told us that South Carolina does not have legal separation. She most likely will not return with me and we plan to divorce later. Nor did we do any decree when she left. The only thing my wife had me do is write a notarized letter that I will pay ALL of my daughter's child support(we agreed about $650 monthly). I've been doing these payments now for a year and also, found out that my wife is taking some of that money for herself since she doesn't work. I'm also covering both of them and paying for them in my employer's health insurance. So in essence, they are both still depending on me totally financially. I am also planning to file as married filing jointly since we were still married at the end of 2016 and she most likely cannot fill out her own tax return in Mexico.
Can't I claim my daughter as a dependent even if she has not been living with me for most of 2016? Can I do this without having wife fill Form 3329(Release of Claim to Exception for Child by Custodial Parent). To get my wife to fill this form and sign would take forever being she is in Mexico and I would not get the form back in time for the tax deadline. Thank you.
05-06-2017 06:22 PM
Welcome to the H&R Block community.
There is a way to do this that will not require any forms to be signed or anything like that. If your spouse has been living separately from you for more than the last six months of 2016 and your daughter lived with you for more than six months out of the year then you can take the exception to filing using the married & filing separately status and file as a head of household and claim your daughter as your qualifying child.
The other option here is to file jointly with your soon to be ex-spouse and claim your child. However, your spouse must also sign the tax return or be aware of it being filed & approve of it if e-filing on your own and if you file without her knowledge that could lead to trouble so I can't recommend that.
Note that if you file as head of household you cannot file an exemption for your spouse unless she is a non-resident alien and you choose not to treat her as a resident alien for tax purposes. Spouses normally cannot be claimed as dependents.
There's also one other possibility. If your wife was not given custody of your child by the court system and you did not sign anything giving her custody and your spouse will not let you see the child then you could potentially claim your daughter as a dependent child under the kidnapped child rules but before I say 100% on that I was to look that one up and see the specifics on those rules because that is rare enough that it's fortunately not seen often. You can claim full benefits for a child who is considered a kidnapped child even if they haven't lived with you for the otherwise mandatory more than half of the year.
If you have any other questions I'll be glad to help.
Senior Tax Advisor (Tampa, FL)