My fiance and I have been together for 6 yrs. As of July of 2011, we now have 50/50 custody her minor children. Our custody agreement is set up as a 2/2/5/5 set up. In October of 2011, her ex's new wife passed away and he asked us to switch up the time sharing so that we had the kids Monday through Friday and he would take them on weekends, with us getting every 3rd weekend. We also had a conversation, with my fiance as a witness, in December of 2011 where we verbally agreed that he would claim the both children for that year, we would claim them for this year, and then starting next year we will split them. We used this time sharing set up until August of 2012, at which time we went back to 2/2/5/5. We have all the documentation necessary to prove we had the kids for that period of time and the kids Doctors and School addresses are listed as our home. My questions are as follows:
1. We have been informed that he intends to claim the children on his taxes this year. Can he do this, considering that I provided care for them for more than 50% of that year( even though I am not the biological parent )?
2. If he can't claim them, is there something I can file to "Block" him from claiming the children this year?
3. If he can claim them, what do I need to do to correct my taxes because I listed 4 dependents on my W-4 form in accordance with the verbal agreement we had?
4. Is there any legal action I can take for him breaking the verbal agreement?
1 Answer from Attorneys
My advice based on your facts: if you supported the children for at least 1/2 of the year
when they resided with you, you didn't give the other person a Form 8332 which gives up
your right for a child deduction, and your marital settlement agreement (if you have one) does
not control child deductions for federal income tax purposes, then you should claim the
children on your 1040 and continue to claim them on your W-2 until the situation changes.
If the IRS raises the matter or requires an audit (unlikely), you have the proof to settle
the matter. You could include an explanation with your tax return. Otherwise, you have
little options for blocking the claim by the other parent or filing a legal action. But you
should file your return claiming the deduction so long as your income and child support
is consistent with IRS Publication 503. Being a biological parent is not the IRS test;
your ability to claim child deductions is based on your actual support of the children,
your income, and whether you have given these rights to the other person. Also, you
can inform the other person that you will be claiming the deduction.
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