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Merlo
Merlo, Accountant
Category: Tax
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Experience:  25+ years tax consulting. Specializing in returns for US citizens living abroad
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I am seperated from my husband and have been for about a year

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I am seperated from my husband and have been for about a year and a half. Legal custody and child support was agreed on in court at the time of seperation.   My question is regarding tax filing status. My ex tells me that because we haven't been to court to decide the outcome, it is not determined that I can file this year's taxes and claim both my kids as dependants. Is this true? Please advise

Thank you for choosing Just answer. Lets address the first issue-divorce. To the extent that you do not have a final divoce decree by the end of a filing year (i.e. 2008) you have several options. You can file married filing separate or married filing jointly or Head of Household. You can only file as Head of household if in fact you provide more than 50% of the supoort for your children. You do not need to have the final decree finalized to determine who may claim the children. However, if that is still an open issue not having that determination could pose a problem.

 

Kindest regards,

Jim Revels, Certified Public Accountant (CPA)
Category: Tax
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Experience: Providing income tax / planning services for over 16 years on all entity and individual tax issues
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Hello eharvey,

It used to be that if a divorce decree granted one parent the right to claim a child as a dependent for tax purposes, the IRS would honor that agreement.

However, in mid year 2008, the IRS reversed their position on that matter. Now it does not matter what your divorce decree states. The IRS will allow the custodial parent (the one with whom the child lives for most of the year) to claim the dependency exemption, regardless of what might be contained in the divorce decree. The only way that the non-custodial parent may claim the children is if the cutodial parent releases their right to the claim by signing form 8332.

If you are the custodial parent, you may claim your children as dependents, regardless of what ends up in the divorce decree.

Please refer to page 10 of the Final Regulation 94-08 regarding this new regulation.

http://www.dadsdivorce.com/images/documents/irschildrendivorcedparents.pdf

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Thank you.


Merlo, Accountant
Category: Tax
Satisfied Customers: 9783
Experience: 25+ years tax consulting. Specializing in returns for US citizens living abroad
Merlo and other Tax Specialists are ready to help you
Is there a reason you accepted the first answer instead of the corrected one that I gave you? I was trying to help get you the correct information, but instead you paid the other expert and I am just wondering if you needed more clarification on my answer?



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