Answer

Hello again ddpeek,

The IRS allows the exemption to be claimed by the parent who the child actually physically lives with for most of the year. It is not based on who was awarded custody by the court.

However, in a case such as your brother's where it appears that the actual parent with whom the child spends the most time, it will come down to keeping very detailed records of exactly which days the children resided with which parent.

If the wife has already claimed the children on her return, then if your brother now also tries to claim the children, this will result in the following: First, you would not be able to file his return electronically. It would automatically be rejected, because the SS numbers for the children will show as already being claimed by another taxpayer. So at that point you would have to mail his return. He would need to attach a statement to his return explaining that even though he is aware of the fact that the children were claimed by his ex-spouse, that he is the one with whom the children actually live for most of the year.

Once the IRS receives his return, they will then send notification to the other spouse to ask for her justification or proof that the children lived with her most of the year. If she cannot substantiate that claim, they would then allow your brother to claim the children, and they would require the mother to pay any additional taxes she owes as a result of the deductions being disallowed.

She does not have to prove that they lived with her for the full 12 months. She only has to show that they lived with her for more than half of the year. If she cannot show that and your brother can show that they did live with him for more than half of the year, then he would be allowed the exemptions.