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Can I claim my fiance's children as dependants?

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Can I claim my fiance's children as dependants?

Postby maralyn » Sun Feb 03, 2013 2:43 pm

My fiance and I have been together for 6 yrs. As of July of 2011, we now have 50/50 custody her minor children. Our custody agreement is set up as a 2/2/5/5 set up. In October of 2011, her ex's new wife passed away and he asked us to switch up the time sharing so that we had the kids Monday through Friday and he would take them on weekends, with us getting every 3rd weekend. We also had a conversation, with my fiance as a witness, in December of 2011 where we verbally agreed that he would claim the both children for that year, we would claim them for this year, and then starting next year we will split them. We used this time sharing set up until August of 2012, at which time we went back to 2/2/5/5. We have all the documentation necessary to prove we had the kids for that period of time and the kids Doctors and School addresses are listed as our home. My questions are as follows:

1. We have been informed that he intends to claim the children on his taxes this year. Can he do this, considering that I provided care for them for more than 50% of that year( even though I am not the biological parent )?

2. If he can't claim them, is there something I can file to "Block" him from claiming the children this year?

3. If he can claim them, what do I need to do to correct my taxes because I listed 4 dependents on my W-4 form in accordance with the verbal agreement we had?

4. Is there any legal action I can take for him breaking the verbal agreement?
maralyn
 
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Can I claim my fiance's children as dependants?

Postby beldene70 » Sun Feb 03, 2013 2:48 pm

I assume the mother has no income.

Since you are not a parent, your tax benefit, should you qualify to claim the children, is limited to an exemption for each child. That's it, no child tax credit or earned income credit. The unrelated child must reside with you for the entire year, which isn't the case. So regardless of any agreements, you cannot claim these unrelated children.

If you are not a parent as of 12/31/2012:

1. Yes, the father can claim the children. The other parent had no income and so she is not going to file a tax return. From your information, it appears that you have provided over 50% of the child's support, so the mother cannot assign the children's exemptions to the father.

2. No

3. Too late to make meaningful changes to your W-4. You should only have two allowances, assuming you claim your fiancee as a dependent. You evidently were misinformed about the tax benefits of claiming children which are not related to you.

4. No

If you get married before 12/31/2012, the situation completely changes. The children are now your stepchildren, you can file a joint return with your spouse and claim the children. If the other parent claims the children, he will lose upon examination of the circumstances. If you are going to do this, get your return filed as soon as e-file opens late in January, so that the other parent's return bounces back. This may save you some trouble.
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Can I claim my fiance's children as dependants?

Postby santino » Sun Feb 03, 2013 2:55 pm

The IRS doesn't go by custody agreements. It wants a calendar showing which nights were spent at each household, a total and the parent who has 184+ nights for 2012 is the custodial parent. The one who doesn't have 184+ nights is non-custodial.

If he has the nights for 2012, he wins and there is nothing you can do about it. He could sign the form 8332 giving the mother the right to claim the children's exemptions and child tax credit, but this would NOT extend to your return as you are not married to her.

If mom has the most nights for 2012, then she is the custodial parent. However, this doesn't do you any good because they can only be claimed on HER tax return. Unless and until you get married, they can't go on your return.

If you put 4 on your W-4 and you do not have the nights, you blew it. You will owe for 2012. You have less than one month to bump the withholding on your W-4 to avoid the possibility of an estimated tax penalty. (If your withholding in 2012 is more than you paid in 2011, that's fine, but you still have to pay by 4/15/2013.)

Finally, have you claimed these children on ANY of your prior returns? If so, you need to amend. There is no legal or biological relationship between you and them (you never married the mother!), they could only be claimed as "qualifying relatives" if they lived with you the entire year, you supported them and the mother had less than $3800 of income. Since they spent nights with their dad under the custody agreement, they do NOT meet this test. Your fiance might, but the children do not.

Edit, I just figured out that 2/2/5/5 is a notation that says out of every 2 week period, each parent gets 7 days and nights. However, the tax year has 2 extra nights, so even if they hadn't changed the schedule, somebody has the children more.
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Can I claim my fiance's children as dependants?

Postby burgh77 » Sun Feb 03, 2013 2:56 pm

The IRS doesn't go by custody agreements. It wants a calendar showing which nights were spent at each household, a total and the parent who has 184+ nights for 2012 is the custodial parent. The one who doesn't have 184+ nights is non-custodial.

If he has the nights for 2012, he wins and there is nothing you can do about it. He could sign the form 8332 giving the mother the right to claim the children's exemptions and child tax credit, but this would NOT extend to your return as you are not married to her.

If mom has the most nights for 2012, then she is the custodial parent. However, this doesn't do you any good because they can only be claimed on HER tax return. Unless and until you get married, they can't go on your return.

If you put 4 on your W-4 and you do not have the nights, you blew it. You will owe for 2012. You have less than one month to bump the withholding on your W-4 to avoid the possibility of an estimated tax penalty. (If your withholding in 2012 is more than you paid in 2011, that's fine, but you still have to pay by 4/15/2013.)

Finally, have you claimed these children on ANY of your prior returns? If so, you need to amend. There is no legal or biological relationship between you and them (you never married the mother!), they could only be claimed as "qualifying relatives" if they lived with you the entire year, you supported them and the mother had less than $3800 of income. Since they spent nights with their dad under the custody agreement, they do NOT meet this test. Your fiance might, but the children do not.

Edit, I just figured out that 2/2/5/5 is a notation that says out of every 2 week period, each parent gets 7 days and nights. However, the tax year has 2 extra nights, so even if they hadn't changed the schedule, somebody has the children more.
If either of the parents can claim the children, then you cannot claim the children. You can claim the children only if both parents are unable to claim the children, and you meet all the other requirements. Since you gave no reason why your fiance cannot claim the children, you cannot claim them.

There is nothing that can be filed to "block" a claim until a claim is made.

The only person in the world with the ability to stop his claim is your fiance. If she claims the children, herself, that might do the trick. If only you and he claim the children, and she does not, then your claim will be denied, and his will be allowed, because he is a parent of the children and you are not.

Verbal agreements pertaining to the claiming of children on taxes are not valid. Any transfer of the ability to claim a child must be in writing. Also, the transfer must be from one parent to the other parent; an agreement to let any other person claim the child is not valid.

You don't really need to do anything to "correct" your taxes. You do need to file your taxes without claiming the children. You also need to give your employer a new W-4 listing the correct number of dependents.

There is no legal action that you can take for someone breaking an agreement to break the law. Since it would have been against the law for you to claim the children, you cannot take any action against him for breaking the agreement that you would claim the children.
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Can I claim my fiance's children as dependants?

Postby mathews24 » Sun Feb 03, 2013 2:58 pm

the rule is the parent with whom the children spend the majority 'nites' with claims the children
if the custodial parent is filing a tax return the children would be claimed on that tax return
if you get married before Dec. 31, there is no problem claiming the children on your married jointly return
as unmarried, you would possibly be claiming her as a qualifying relative if she met the requirements but unless the children resided in your household the ENTIRE year you could not claim them
he may claim he intends to claim them but without the majority 'nites' custody he has little chance of the exemptions passing
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Can I claim my fiance's children as dependants?

Postby enkoodabaoo » Sun Feb 03, 2013 3:11 pm

1. Without the mother's permission, the father cannot claim the children because they did not live in his home for more than half of the year. You cannot claim the children as dependents because they are not your children. The only way to claim a non-related person is if they live in your home for the entire year. (There are other rules, but the fact they did not live with you for the entire year is enough for you to be unable to claim them.)

2. The mother can "block" the father from claiming the children as dependents by filing her own return claiming the kids.

3. Because of how you filled out your W4, you likely did not have enough federal income tax withheld. You will "correct your taxes" when you complete your return and pay the additional tax owed.

4. I doubt there is any legal action you can take. The verbal agreement was in violation of tax law and therefore is unenforceable.

Edit to add: If you and your fiance get married before the end of the year, her children become your step children and you can claim them as dependents.
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Can I claim my fiance's children as dependants?

Postby kelsey » Sun Feb 03, 2013 3:19 pm

Biological blood related parent for 2012 during the 2013 filing season 184 nights would be the custodial parent for this purpose and time in your life with very good daily written records and evidence when the IRS would want the information verified during some future time in life for this purpose.
Legally married couple before midnight December 31 2012 according to the IRS rules would mean your step child for income tax purpose during the 2013 tax filing season.
And now 6 years later you will really decide to finally get married to each other LEGALLY for this purpose and time in your life.
Hope that you find the above enclosed information useful. 12/02/2012
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Can I claim my fiance's children as dependants?

Postby fitz » Sun Feb 03, 2013 3:25 pm

Move up the wedding. Then you can file a joint return, and claim the kids, if you had them more nights of the year than their dad did. I don't know just what you mean by 2/2/5/5/, but if you had them more nights, clam them. If he had them more nights, he gets the claim.

Does the mom work? Did she make over $3800 for the year? If so, you can't claim them unless you're married by the end of the year.
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Can I claim my fiance's children as dependants?

Postby gaspard » Sun Feb 03, 2013 3:31 pm

There's no "blocking" him in advance thru IRS channels. The IRS does not know that you and him know each other, so they just look at the 1040s after they've been received.

If two different people each try to claim the same child as a dependent, the IRS will ask both of you for proof of your claims.

Now, you may need a lawyer.
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Can I claim my fiance's children as dependants?

Postby kellan » Sun Feb 03, 2013 3:45 pm

There's no "blocking" him in advance thru IRS channels. The IRS does not know that you and him know each other, so they just look at the 1040s after they've been received.

If two different people each try to claim the same child as a dependent, the IRS will ask both of you for proof of your claims.

Now, you may need a lawyer.
You can't claim them as you are not related to them. Custody agreements are irrelevant to the IRS.
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