I would like to find out if I can file separately from my WH and claim all the children? My thread explains our sitch in more detail, but here are the basics:

I have had the kids since 7-9-06. I have paid all of our bills, minus WH credit cards and truck payment. WH has given me money to pay for bills since he left me with all of them. NO CS order has been issued yet.

We have a rental property on which we will have a considerable deduction this year to non-paying tenants and numerous repairs. I was going to let my WH take this deduction and all his work deductions.

I was hoping to just claim the kids and my work deductions...which would provide a hefty return for me.

Just want to know if this is OK to do, or am I asking for trouble?

Any help would be appreciated.

IHC

Check out the IRS website. The info below is copied from this page: http://www.irs.gov/faqs/faq2-2.html


2.2 Filing Requirements/Status/Dependents/Exemptions: Filing Status

If I moved out of my house on July 10, but was not divorced at the end of the year, can I file as head of household and take the earned income credit if I have a minor child? Can I also claim child care expenses?

You do not qualify for the head of household filing status because you and your spouse have not lived apart for the last 6 months of the taxable year and are not considered unmarried. Your filing status for the year will either be married filing separately, or married filing jointly. If it is married filing separately, you will not qualify for the Earned Income Credit and cannot claim a credit based on child care expenses. If you file a joint return with your spouse, you may be eligible to claim these credits. See Publication 503, Child and Dependent Care Expenses and Publication 596, Earned Income Credit.

heylady,

Thank you. That is the kind of help I was looking for. I am not that great at internet searches, so this is very helpful. I guess I need to become more adept at that.

Mnay thanks,
IHC

The child care credit is small anyway.

Do you get to claim the kids???

I'll look at this tomorrow unless someone else comes up with the answer. Off the top of my head...it's either the one that makes the most money gets them OR the one that can prove more than 50% custody over the course of 2006. Problem I see is the date...from Jan 1 up until July 9 (more than 6 months)...you both get to claim custody...thus you can't claim more than 180 days of sole custody to beat him...I think).

If you can't take them...then I'd strongly encourage you to file joint...often the court can MAKE/ORDER the uncooperative spouse provide the information and file a joint return.

Mr. Wondering

Good, Mr. W is on the case.

I'll warn you of one thing. Be sure you let your husband know what you are doing. When my kids were small, I claimed them (never got child support), and I had custody and paid for everything.

Next comes an AUDIT from the IRS. They dragged ME in. It seems husband claimed them also. He was "missing", living somewhere across the country. I'll never forget that. I had just gone back to work, and only made $11,000 that year, and they audited me.

More from the IRS website:


Children of Divorced or Separated Parents
In most cases, because of the residency test (see item (3) under Tests To Be a Qualifying Child in Table 3, a child of divorced or separated parents will be a qualifying child of the custodial parent. However, if the child does not meet the requirements to be a qualifying child of either parent, the child may be a qualifying relative of one of the parents.

Special rule for divorced or separated parents. A child will be treated as the qualifying child or qualifying relative of his or her noncustodial parent if all of the following apply.
The parents:

Are divorced or legally separated under a decree of divorce or separate maintenance,

Are separated under a written separation agreement, or

Lived apart at all times during the last 6 months of the year.

The child received over half of his or her support for the year from the parents.

The child is in the custody of one or both parents for more than half of the year.

Either of the following applies.

The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement made after 1984, later.)

A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2006 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during 2006. See Child support under pre-1985 agreement, later.

heylady,

Unfortunately I'm on my crappy home computer and I can't open the link to the IRS website. The answer can be found approximately within the same area you posted above HOWEVER the above is not the answer.

IHC's kids are "qualifying children" to IHC as she is the custodial parent; however, her WH may also be considered a custodial parent because he was with the kids for 7+ months himself. This only tells us if a Non-custodia parent (if WH actually is one) can take the deduction but doesn't tell us who wins IF they both can take the deduction.

I'll read more tomorrow when I'm on my real computer at work.

Mr. Wondering

Well, that is just not going to suffice, Mr. W. We need our on call expert to have a real computer. I'm going to take up a collection.

A key in IHC's situation seems to be the fact that it hasn't been an entire 6 months. A bit further down the page is this section:

Table 4. When More Than One Person Files a Return Claiming the Same Qualifying Child (Tie-Breaker Rule)

Unfortunately, it didn't copy/past correctly here, so I couldn't put it in.

Yes..that's it.

I just got on my 7 year old daughters new laptop so I could read it.

It is my belief, upon cursory view that the IRS would allow IHC the deduction for all the kids because she had more custody throughout 2006. IHC wins the tie-breaker.

Confirm with your accountant...but if you file separately, I believe you both could take the deduction technically but the IRS would only allow IHC to deduction for the kids to hold. WH loses.

Mr. Wondering

heylady, Mr W, believer,

Thank you all so much. I was hoping to get some clarity before I called our tax co. to file.

I was hoping that because we had them together for the first 6mos. and then I had them the last 6 that it would count like I had them 75% of the time.

AmI told me that Mr W would probably know. I am glad to have your advice! (no risk invovlved...I promise!)

Thank you again!
IHC

IHC:

It isn't the Child Care Credit that controls here.

It the Earned Income Tax Credit. And the Cash available from the Additional Child Tax Credit.

You never described your income level. But if you made about $15k, you could get $4k from the IRS.

Filing Joint with WH blows that up.

And the July 9 date makes it difficult to get the holy grail. EIC.

So, check the July 9 date. Was that the day he picked up the Underwear, or was he gone before that?

And file on Jan 16th. The First day you can electronically.

And then he is second. The IRS usually goes with who files first.

LG,

RE: The Earned Income Credit (EIC)

The only way IHC can claim Earned Income Credit(EIC) would be if IHC and her H's combined earned income falls within the income limitations AND they file a joint return.

IF IHC files as "Married, Filing Separately", her H will also have to file that way, so neither of them qualifies for EIC, assuming that either one's earned income falls within the limitations.

Some people, who are still married and living separately, make the mistake of trying to file as "Head of Household"; but, this is fraud and could come back and bite you in the butt. Sure, some people get by with it for a while, but you should know that IRS has entire units who do nothing but examine returns for fraudulent EIC. Sooner or later, IRS will find out...and don't think they can't!

According to the IRS website, it is possible to file as head of household while still married in certain cases:

http://www.irs.gov/taxtopics/tc353.html

Generally, to qualify for head of household status, you must be unmarried and you must have paid more than half the cost of maintaining as your home a household that was the main home for a qualifying person for more than half the year. You may also qualify for head of household status if you, though married, file a separate return, your spouse was not a member of your household during the last six months of the tax year, and you provided more than half the cost of maintaining as your home a household that was the main home for more than one half of your tax year of a qualifying person.

lousygolfer,

I was disappointed about not being able to receive the EIC, but together we make way too much for that anyway, so I wouldn't get it normally anyway. But my income alone is about 24,00.00 per year, so with 5 kids I should get a great return.

IHC

Lady Clueless,

I definitely don't want to do anything illegal, or that would cause red flags...I am glad I am getting this info before I file.

IHC

heylady,

This info will be good for next year...unless a miracle happens...

IHC

IHC:

The facts are what the facts are.

But, I do not think that the IRS should profit from your martial difficulties.

With 24k in income, there is still a significant amount of EIC available to you.

The child tax credits are available even if Filing Seperate.

So, make sure you sort it out first. And this may entail speaking with WH.

But, usually, with cash on the line, it's tough to get agreement when you are seperated.

Because, you do want to maximize the return to you, not him, Right? So, plan on him doing the same.

And remember, what happened before July 9? Is that really the DAY? Or was it line in the sand day?

The tax code is loopholes. Some would say giveaways. But I don't write'em, I just try to use 'em.

Also,

It may behoove you to figure out the taxes either way as I'm pretty certain WH will pay a lot more IF you file separately and take the kids deductions. Thus, WH will be inclined to communicate and want to file joint (assuming he cares about his money).

You may be able to exact a written agreement with him wherein you get a much larger portion of the refund check, if any, or he has to pay you to file jointly to save him money overall. For example, perhaps he will agree to pay you $2,000 instead of having to pay $3,000 to the IRS on his separate return. If you two can get the EIC together this may be a logical agreement as joint returns usually result in lower taxes overall. He's got to pay to save. Only do it if you'll end up ahead.

The obvious problem is Waywards don't use logic. He'll feel ENTITLED to filing a joint return to save money. Pretty simple...just don't sign the joint return without a cashiers check in hand (and make sure the memo says payment for signing a joint return so he doesn't try to characterize it as "support").

Mr. Wondering

Mr W,

He will get nailed for taxes w/o all the kids, but at this point, he has screwed me out of so much money that I am just not very sympathetic. Together I won't fare as well as I will separately. He also won't have money up front to give me to file jointly (as per your suggestion). Together we would not receive the EIC anyway, so I am not losing that.

I am just in a holding pattern until I get my W2's.

Thank you so much for the help...I really was unsure of what I could do before.

IHC