Tax Question. - Garfield,WA

Legally, he can file as married, filling separately, which actually carries a bigger tax penalty than if he'd just filed with you and then the two of you had divided the bill or refund according to the percentage of income. He probably will simply break even not get ahead the way he did it.

Sigh...

this is why couples need to file for a legal separation and not just part ways. A half decent lawyer would have told you that you needed to hash out the taxes in writing.

I'm assuming that you didn't file a separation agreement with court that included this? The deduction goes to whatever parent provided the most support during the year. If you provided more than 50% of her support, you are entitled to claim her. Because she lives with you - and assuming that you don't have some other complex arrangement going on where he's paying a substantial part of your living expenses or your parents are supporting your daughter, etc. - the deduction is yours. The link below lists all kinds of scenarios and possible outcomes:

http://www.irs.gov/publications/p17/ch03.html#en_US_2013_...#

As to how this is enforced...they may or may not catch it initially, or ever, but he really should file an amended return to keep himself out of trouble:

https://turbotax.intuit.com/tax-tools/tax-tips/Family/Wha...

Basically, you go ahead and claim your daughter as your dependent. If it gets flagged, you'll provide whatever documentation they request and be recognized as having filed correctly and your husband will have a few years to file an amended return and pay back anything he owes.

Do make sure that this gets spelled out clearly in your separation and divorce agreements.

In response to some other inaccurate info you've been given...you should both be filing as married filing separately - that's how separated couples file and it's perfectly correct to do so. As to whether or not your child lived with you for more than 50%, of the year, the time that you lived together doesn't count. Of the remainder of the year, when you were living apart, your child lived with you and therefore, you provided more of the support for your child than your husband did and are entitled to claim her as your dependent.

You may not have an audit. You may just receive notice from the IRS that you cannot claim that dependent because she was already claimed on another tax return. They would then lower your refund.

One of you will get less. The one who filed first will likely get the return. Too bad you didn't get separation papers filed or divorce papers. Because until you do you are legally married no matter where you lay your head to sleep or he lays his. You are legally a married woman so he can even file for the whole family. Of course you wouldn't have signed it but there's no reason he can't expect that.

Since you are not divorced you should have filed married because you still are. There is no separated designation in tax law and the IRS does not like when people try to drag them into their nonsense. With no court order in place that was how you would have to file.

The only way he will get in any trouble is if he did not file married filing separately. If he filed appropriately he has every right to claim her absent an order. Yours will be rejected and you will have to file again. There will be no auditing.

Sorry but four months of the year is not living with you 50% and as I said before the IRS doesn't get into this stuff the court decides. Since both of you legally had the right to claim her he gets the deduction pretty much because he filed first. You were stupid not to have petitioned the court to have an order in place, this is the price you pay.

With no court order in place the fact that you kicked him out doesn't change anything. You are not divorced therefor you are not entitled to the protections that decree gives you.

Ya know, yesterday was the first day you could e file. There is a chance the IRS will reject them both and make you guys go to court and duke it out. Considering he didn't move out until August the IRS will give him the deduction.

You lived together for greater than half the year. Therefore it is presumed that you both supported her in those months. That being the case, either one of you can claim your child as a dependent. Since he claimed her first you cannot. Make sure you have the tax situation addressed in your divorce decree. A lot of decrees say mom gets even years, dad gets odd year provided child support is current.

The first year I had guardianship of my GD, my tax guy called and said he could not submit my taxes electronically because someone had already claimed my GD as a dependent. He mailed them in. I still got my refund, no problem, but about 3 months later I got a letter from the IRS saying myself and someone else claimed the same dependent. It said if I was not entitled to the deduction, to file an amended return within 30 days. If I felt like I was entitled to it, to do nothing. I assume the other people got the same letter. I did not do anything; again, I assume the other people filed an amended return because I've not heard another word about it and that was four years ago. So, I assume it will be the same for you. One or the other of you is going to have to amend and if neither does it voluntarily, then the IRS will let you know the next step. It doesn't really mean an automatic audit.

you are right, and he is wrong.
J., i am SO glad to hear that you separated from your husband. i sure hope your life is going along better, and that you and your daughter are building a better future.
you GO, girl!
khairete
S.

When you filed your taxes, it should have asked if your child resides with you more than 50% of the time. If the answer is "YES" then the deduction goes to the one who has custody the most.

http://taxes.about.com/od/dependents/qt/splitting-depende...

I am very sure that he cannot claim her on his taxes, J.. You could certainly ask H&R Block (I don't think you have very complicated taxes, so they could probably answer the question.) Living with you means that she is in your household more than 50% of the time, and I'm pretty sure that this is the criteria.

If I were you, I wouldn't worry about being audited. When you show them that she lives with you, he will be the one who they hit with penalties and late fees.