My husband has three children from a previous marriage. According to his ex-wife she was unemployed in 2008. We paid both child support and alimony. We also had them 161nights this year. She will not sign the release form. Is there any way that we can still claim the children without the release form?

My husband has three children from a previous marriage. According to his ex-wife she was unemployed in 2008. We paid both child support and alimony. We also had them 161nights this year. She will not sign the release form. Is there any way that we can still claim the children without the release form?



What does the divorce say about claiming the children?

Not one word

If there is no provision in the divorce decree, then the custodial parent gets the exemptions UNLESS the non-custodial parent can prove that he provided more than HALF of the children's total support. He would do this by claiming the children on his return, then taking his proof to the IRS when the IRS challenged the claiming of the exemptions, which is inevitable unless the custodial parent does not claim the children on HER return.

All this could be avoided by simply negotiating with the custodial parent. If her income was exclusively unemployment compensation, she does NOT need all of the exemptions.

If both parents took their returns to the same tax professional, the tax pro could model the returns to get the optimum result for BOTH parties and possibly serve a"honest broker" to get the best deal for both parties.

What if she didn't even collect unemployment, but instead lived off the alimony, child support, and foodstamps? Can she even claim them at all?

Read the requirements: Your U.S. Tax Return: Child of separated or divorced parents (http://taxipay.blogspot.com/2008/03/child-of-separated-or-divorced-parents.html)

Alimony is taxable income which must be reported on a tax return, so it is likely she will claim the children on her return. If she had ANY earned income at all, she will qualify for a large refund generated by a combination of the Child Tax Credit and the Earned Income Credit.

You can file and claim the children, then present your case that you are providing more than HALF of the children's total support when the IRS challenges your depenedency exemptions and pulls you BOTH in for an audit to determine who gets to claim the children.

That can be a long and drawn-out affair, so it is best that you try to get your ex-spouse to the logic in working out a deal that benefits BOTH of you.

However, if you indeed can prove you provided more than half of the children's total support, the dependency exemptions, by law, belong to you. Do not forget that when you are negotiating with your ex-spouse.