Legal Question in Tax Law in Illinois

claiming children of joint custody on taxes

The divorce decree says that my wife claims the younger of the two children on her taxes and her ex-husband claims the older child on his taxes. This past year my wife and I moved to Illinois from Michigan. His lawyer was highly paid and convinced the court that it was not in the best interest for the children to move. My wife and her ex-husband made arrangements so that we could still move to Illinois. Nothing from the original divorce decree was changed. It is true that the children are spending more time with their father than with us this year. However, that role was reversed for the past five years. During the past five years one child was claimed by my wife and one was claimed by her ex-husband. He is now claiming however that according to the law, he gets to claim both of them on his taxes because he has them more than we do. This doesn't seem right to me, because if that were true than we should've claimed both of the children for the past five years. According to the divorce decree, each parent claims one child. I believe this is how it is still suppose to be. Am I correct? Do we go by what the divorce decree proclaims?

Asked on 1/31/07, 10:37 pm

1 Answer from Attorneys

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Re: claiming children of joint custody on taxes

The parties to a divorce settlement decree are supposed to follow its terms, but the IRS generally does not.

If one of the parents should challenge the terms of the decree, and are able to prove to the satisfaction of the IRS that they provided over half of the support of the child for the tax year, then that parent is entitled to the deduction.

If you believe you paid more support in past years, you may want to amend your past years' returns to make the correction. However, keep in mind that doing so will extend the period that the returns remain open for audit purposes (usually this period ends after 3 years from the due date or the date of filing), so if there are any other items on your return that you would not want to have open to audit for additional years, you may not want to take the risk.

Talk to your family law attorney for how best to approach this issue. As for other tax considerations, you should be aware that the IRS will challenge the exemptions on both of the returns (yours and your ex's) once your amendment has been filed. In other words, be ready for correspondence and communications from the IRS that will probably take quite awhile to resolve.

Good luck to you.

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2/01/07, 10:24 am

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