[quenya]

My ex and I have two kids together, but he is not on the birth certificate. He claimed me and my son last year even though we did not live together for 9 months. I want to claim my son and daughter this year but he won't let me and the kids have only lived with him for 4 to 5 months I had welfare on the kids until about 1 month ago he has their social security cards and I don't he is telling me he is claiming them not me can I do something about him claiming me last year when I didn't give him permission to claim me and what can I do this year so I can claim my kids? What if I don't file first and I file second.

[ebaines]

The custodial parent is the one who is allowed to claim the children as dependents. If you have a court order granting you custody, then you are all set. If you don't, then you're going to have to document that the kids stay with you more than half the year. Don't worry about racing against your ex to file first - if he files before you do you will not be able to e-file (as the IRS computers will pick up the conflict and reject the filing), in which case you simply file a paper return, and include a note that you have legal custody of the children. As for him claiming you as a dependent - he can't do that if you file your own return and do not indicate that you are being claimed by someone else. Did you file a return last year? If so, the IRS will catch up with him sooner or later.

[AtlantaTaxExpert]

Everything ebaines says is true. The bottom line is that YOU, as the custodial parent, controls which parent claims the children as dependents on his/her tax return.

However, if you were on welfare (which presumably is NOT taxable) up to last month and your total taxable income is for (at most) eight weeks of pay, it is likely that your total taxable pay for 2010 is LESS than the total of your personal exemption ($3,650) and your standard deduction for Head of Household ($8,400) (Total = $12,050).

So, if your total taxable pay for 2010 is LESS than $12,050, then you do NOT need your children's dependency exemptions on your tax return.

If you provided a home for the children for more than half of the year, you can STILL claim Head of Household AND claim the Earned Income Credit for the children, even if you do not claim them as dependents.

Your ex-husband could claim the children, thus getting a $7,300 deduction for their dependency exemptions AND get the $2,000 worth of Child Tax Credits.

It seems to me that you have a LOT of room to negotiate with your ex-husband as to who claim what on whose return. You should consider talking to him about you BOTH going to a local tax professional who would prepare BOTH of your returns, then model the returns to determine which way produces the biggest tax refund.

He could also serve as the "honest broker" to help you decide who gets how much of the resulting refunds.

[Fr_Chuck]

Agree, what does the child custody agreement say about who gets to claim , many are plain and state it.

Also, it is not his choice, he does not get to decide, the person who has legal custody, ( as noted above) are the ones who gets to claim the kids unless otherwise stated in the agreement.