Should my ex-wife be able to claim any of the children when she does her taxes?

UPDATED: Oct 1, 2022

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Should my ex-wife be able to claim any of the children when she does her taxes?

Long story short, my ex-wife and I got divorced and when the papers were finalized she left a month later to move to Florida and got married. In doing so she gave me back custody of the kids. In our agreement I was to not pay child support for a little over a year in order to gain any of the equity that I was already in the house because she was not going to be selling the house at that point. However, when she moved I got the kids right away so I did not have any time not past while I wasn’t paying child support and where she would have been around to have the kids half time. So at this point she only sees the children about a month out of the year and pays me about $400 a month for the 3 kids and does not help with anything else. Our divorce agreement at this point in my eyes is null and void because we have a new custody agreement and she left the state and basically didn’t hold up to her end of the bargain in the divorce agreement. Should she still be able to claim any of the kids when she does her taxes?

Asked on November 18, 2018 under Family Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

For a definitive answer regarding your situation, you need to consult with with a family law attorney who can look at all the particulars (e.g. how the amount she pays compares to the children's needs and how much you go out of pocket for them), but as a general matter, the parent who supports the children economically--or provides more of their economic support, since both parents typically pay at least some of support--is generally the one who can claim the children on his/her taxes. So if that $400/month is more than 50% of the monthly cost to support the children, she can likely claim them; if less than 50%, you can likely claim them on your taxes.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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