Legal Question in Family Law in Virginia

Claiming children on income tax

My ex-wife and I have been divorced for 4 years. We settled out of court. The agreement was that since we have 2 children, I would claim the oldest and she would claim the youngest on our income tax. We have joint custody but the children do not live with me due to school enrollment in another county. I have the children every weekend. But I have not been allowed to claim the kids on my taxes since the divorce. Her father is a CPA and he told her that since the kids didn't stay with me 50% of the time, she didn't have to allow me to claim them-she has claimed them both for four years. In order for me to claim the kids, she would have to sign a waiver to allow me to do so. Is this true? And since we have joint custody, is there nothing I can do to claim at least one of my kids for tax rebates? This was not addressed in the separation papers because we had agreed that this is what we would do-each of us would calim one child each. Now my ex-wife is not following up with the agreement. Since this is not addressed in the papers, is there anything I can do?


Asked on 5/12/08, 11:29 am

1 Answer from Attorneys
Paul B. Ward Law Offices of Paul B. Ward

Re: Claiming children on income tax

Probably not. In order to claim a child who has primary physical residence with the other parent, there must be a document filled out each year by the custodial parent granting the exemption to the non-custodial parent. Since this was not made a part of the written agreement and thus not included in the final divorce decree, there is no way to force compliance with a written agreement, and it's not easy to prove there was an oral agreement covering the exemptions.

While it's not strictly true that an oral agreement is worth the paper it's written on, the proof problem is not insignificant.

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Answered on 5/12/08, 12:26 pm


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