Dependents Issue MFS due to DIVORCE!!

[miatax]

Custody issue...

Married Filing Separate in 2007 as well as in 2008. Wife caught cheating. Husband (my client) is entitled to 1 of the children but she already took both of them as dependents for 2008. Is there a way to re-claim 1 of the children? Won't IRS automatically disallow since she already filed?

[David1980]

Paper file. It would get rejected electronically. IRS will send letters requesting more information. Hopefully your client is either the custodial parent or has the signed document from the wife necessary to claim the kid.

[miatax]

David,

They are going through court now regarding custody, and it's a cat fight between them. They don't speak so she wouldn't even think of giving him the signed document so he can take the exemption. She already took it anyway.. I just don't know if there is a way to dispute that with IRS since she already filed.

[kcjenkins]

Whether he is "entitled" or not is not a matter of fairness, it's a matter of law. Whoever the child LIVES WITH for more than half the year is the one who is legally 'entitled' to the exemption. Unless he has a signed 8332, and even if he does, if she had the physical custody, then she can 'revoke' the 8332.

Good luck, if he did have physical custody, because I've found the IRS to have a serious bias against custodial Dads, if the mother claims the kid. I hope if he has the custody, he has good proof of where the kid actually lived. Many school records, for example, don't really have enough to prove it one way or the other, and Doctor's records often have both addresses and names, etc.

[miatax]

Thanks David & KC for the feedback! I think he's out of luck.