[LaurieLong]

My husband has two children from a prior marriage. His ex-wife has a live-in boyfriend. I have just learned (from the ex-wife) that she has not filed taxes in several years as she has not had the minimum reportable income (tho she has worked "under the table"), and that she had had the boyfriend claim the children on his taxes. One CPA told me that this was allowable, but I looked over the IRS rules for qualifying child, and it appears that the children must be his stepchildren for him to be able to do this. My husband pays child support, and we have the children approximately 35% of the time. We are behind in filing our taxes and would like to claim the children on our taxes, if their mother is not doing so, as it would obviously benefit us, and it appears that my husband is the only person other than the mother who would be entitled to claim the children. Thank you so much for your response

[ebaines]

I am assuming that the ex-wife and her BF are not married, and that there is nothing in the divorce decree that givs your husband the right to claim the children as his dependants - is that right? The children are NOT the BF's step-children, therefore they are not "qualifying children" for him. So the BF is apparently thinking that the children are "qualifying relatives," and that the he can file as Head of Household and claim the children (and perhaps also the ex-wife) as his dependents. I'm reading between the lines here, but these seem like a reasonable assumptions - please correct me if the situation is different. The BF can do that ONLY if he provided at least half the children's financial support. You mention that your husband is paying child support - if that amount covers at least half the children's upkeep then the BF can not clain the children as his qualifying relatives.

For your husband to claim the children they must have either (a) lived with your husband at least 1/2 the year - which doesn't seem to be the case here - or (b) the child's mother as the custodial parent must agree to let your husband claim the child by signing form 8332 and giving it to your husband to file with his taxes. Absent that - the ex-wife here is the one entitled to claim the children. But if she doesn't file I believe your husband can claim them as his qualifying children as a kind of a runner up. But be prepared to back up that claim in case the BF tries to claim them as well - the IRS will investigate and your husband must be prepared to show that he provided at least half their support. And if the BF and your husband's ex get married then the BF will indeed be entitled to claim the children.

[AtlantaTaxExpert]

As usual, ebaines has covered all the bases.

I recommend you all sit down and discuss this to come to some mutually agreeable solution. Getting the IRS involved in these issues is NEVER a good idea.