Although you may be entitled to claim the kids on your taxes, for one reason or another, your ex threatens to claim the dependant exemption for the tax year. Here are two things you can do to handle this situation that may result in your ex reversing course.
File Taxes First
The easiest thing you can do is file your taxes claiming the children before your ex does. A couple of things may occur when your ex-spouse's tax return arrives in the IRS office. The agency may reject the return outright and notify your ex the dependant(s) has already been claimed by someone else. Your ex will then be required to prove he or she has the right to claim the children on his or her taxes.
Alternatively, the IRS may decide who gets to claim the dependent exemption. This usually occurs in cases where dependants could be claimed by more than one person (e.g. the kids spent equal amounts of time with each parent during the year). The agency will break the tie in a few different ways:
- By relationship – If only one person is the child's legal parent, that person will get the credit. This is only an issue in cases where one person is a stepparent or your ex's legal ties to the child were severed by the divorce or in other ways.
- By residence – Whoever the child lived with the most during the year gets the tax credit.
- By income – Whichever parent had the highest adjusted gross income gets the credit.
Filing your taxes first is probably the best option in this situation because either your ex will back down when confronted by the IRS or the IRS will resolve the dispute for you.
Remind the Person About the Legal Consequences
The other thing you can do is advise your ex about the legal consequences of taking an exemption he or she is not entitled to. First, the IRS may exercise its third option and launch an audit of your and your ex's finances, which generally isn't a pleasant experience and can result in both of you incurring additional costs (e.g. attorney and accountant fees).
Second, if your ex is claiming the kids in violation of your divorce decree, you can take him or her to court and have your ex found in contempt. This may result in your ex being made to repay you the money you lost due to his or her actions or even being sentenced to jail time.
If your ex doesn't seem to want to take you seriously about the legal repercussions he or she could face for taking an exemption that's rightfully yours, having your attorney send a strongly worded letter to him or her may force your ex to rethink his or her actions.
For more advice on how to handle this and other divorce issues, contact a lawyer, such as Moore Robert G Attorney at Law.
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