[asking]

My ex has a much larger income than me and is pressing me to let him claim our two sons as dependents on his taxes. In 2009, I paid no taxes because my income was so low.

My younger son lives at both houses, although slightly more with me, so I would say he is with me between 51% and 55% of the time. My older son, who is 20, lives with me almost full time, though he often visits his father for several days at at time if his brother is there. He lives with me about 90% of the time. (Just a guess).

Is it legal for my ex to claim them as dependents? The deduction is of no value to me if I don't pay taxes and I'm willing to negotiate it away, but only if it is legal to do so. If it is illegal, and the IRS objected, would I be in trouble for not claiming the deduction? Or only my ex for claiming it?

[Five Rings]

This is an issue that would have been best settled during the divorce proceedings.

To answer your question; yes, it is legal.
Written declaration. The custodial parent may use either Form 8332 or a similar statement (containing the same information required by the form) to make the written declaration to release the exemption to the noncustodial parent. The noncustodial parent must attach the form or statement to his or her tax return.

The exemption can be released for 1 year, for a number of specified years (for example, alternate years), or for all future years, as specified in the declaration. If the exemption is released for more than 1 year, the original release must be attached to the return of the noncustodial parent for the first year, and a copy must be attached for each later year.

See for details:
Publication 501 (2009), Exemptions, Standard Deduction, and Filing Information

[mysterious5]

Yea, its very legal. I don't think its necessary to go through a lawyer. Just have him file taxes with the children as his dependents and that's it. I'm not sure if it's the same but when I filed taxes with my baby I get a good sum back from my tax return, so if your ex gets money back he should split it half with you.

[asking]

This is an issue that would have been best settled during the divorce proceedings.

To answer your question; yes, it is legal.
Written declaration. The custodial parent may use either Form 8332 or a similar statement (containing the same information required by the form) to make the written declaration to release the exemption to the noncustodial parent. The noncustodial parent must attach the form or statement to his or her tax return.

The exemption can be released for 1 year, for a number of specified years (for example, alternate years), or for all future years, as specified in the declaration. If the exemption is released for more than 1 year, the original release must be attached to the return of the noncustodial parent for the first year, and a copy must be attached for each later year.

See for details:
Publication 501 (2009), Exemptions, Standard Deduction, and Filing Information

Thank you! I knew this once but had forgotten it.

In fact, the problem was settled during the divorce, but that was 9 years ago and we did not anticipate either that our 20 year old would still be a legal dependent today or that my income would drop so low.

Thanks again for the help.