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8 Answers

Can a married couple file separately and claim 2 children each?

Asked by: vpalmer 1630 views YA Discussion

I have had joint custody of my daughter since her birth. The mother is married and has 3 other children (not mine). This year, my daughter moved in around June-July once the court order came through (keep in mind the previous order allowed her over every other weekend and for vacations). The total time the child lived at my house this past year was at least six months plus. Now the mother has plans with her husband to file separately so they can both claim 2 children. Is that even legal? Shouldn’t I be allowed to claim my child and not her given the length of time the child was in my residence, before i had primary care and after.

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8 Answers

  1. tro on Jan 16, 2013 Reply

    first of all the parent with whom the child spends the majority ‘nites’ with is the parent to claim the child, in the case it cannot be determined which parent has the majority, the parent with the higher income claims
    and now to them filing separately dividing the children, it disallows the EIC when they file separately and this is probably a major portion of their refund–not a wise choice

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  2. ninasgramma on Jan 16, 2013 Reply

    If your child lived with you for more than six months, and you do not have court papers giving the exemption to the mother, you qualify to claim your child.

    If you claim your child and your return is rejected because another person has claimed your child, you will have to mail in your return and let the IRS sort it out. Get together your documentation that your child stayed at your house for more than six months in case the IRS needs it.

    It is legal for married couples to file separately and each claim different children. The filing status they must use, if they lived together at any time during the last half of the year, is married filing separately. They will not be eligible for the Earned Income Credit.

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  3. Bostonian In MO on Jan 16, 2013 Reply

    If your child lived in your home for more than half of the year (and longer than in the other parent’s home) you get to claim her by default. Be prepared to prove the exact number of nights in your home if the other parent tries to claim her.

    How they file is their business, not yours. They could file separate returns and split the other 3 kids any way that they choose, though normally that would result in paying more tax. That’s their call, not yours.

    If you try to e-file your return claiming your child and it’s rejected for a duplicate SSN, you must file a paper return by mail. That will trigger an automatic investigation by the IRS who will award the exemptions and any other tax benefits according to the law and the evidence provided by both parties.

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  4. Judy on Jan 16, 2013 Reply

    Sounds like you have the right this year to claim your daughter. Remember when counting the nights though that if she spent any nights visiting her mom after she moved in with you, you can’t count those AND the ones before she moved that she stayed with you. It might become real important whether she moved in June or July – you can’t be so vague on that.

    Married parents can file as married filing separately and split claiming their kids, but they don’t get EIC at all if they do, and the child tax credit is reduced, so they almost always end up LOSING money by doing that. People often “plan” to do that until they find out they can’t get EIC that way.

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  5. Pascal the Gambler on Jan 16, 2013 Reply

    Yes, it is. It’s a ridiculously dumb way to file, but they can.

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  6. Quick Answers on Jan 16, 2013 Reply

    Technically, you shouldn’t care how they file.

    If you do find out that each is claiming HOH and EIC with 2 children when they live together, report them to the IRS using form 3949A.

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  7. chris on Jan 29, 2013 Reply

    Can A married couple file seprately and claim Head of Household and claim 1 child each.

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  8. Terry Jones Rhem on Mar 17, 2015 Reply

    Can a married couple file separately and carry 2children although the two children are ones nephews legally and one has custody of the nephews

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