The IRS doesn't take into account the virtue of your spouse when outlining its filing guidelines. For joint returns, both parties must consent to the information listed on the return; for other filing statuses, there are other guidelines that must be followed. Where the kids are concerned, however, both parents are given a fair degree of latitude — meaning, it's totally up to you and your spouse to decide who will claim your dependents. If your spouse goes outside of these bounds, familiarize yourself with the appropriate actions to take.
According to IRS guidelines, you're allowed to claim a dependent on your return if he's your qualifying child. By this, the IRS means that the dependent must meet certain standards. To be claimed as a dependent on your return, the child must live with you for at least half the year; be under the age of 19 at the end of the tax year — or 24 if the dependent is a full-time student; accept at least half of his support from you; and be your child, stepchild, foster child, sibling or a descendant of one of these people.
If your spouse claims your dependents but isn't eligible to claim them per IRS guidelines, you can claim them on your return. You won't be able to e-file and claim your dependents, however, because the e-file system detects that your children’s Social Security numbers have already been used and rejects the return. However, if you mail in a paper return, the IRS initiates an investigation that determines which parent is eligible to claim the dependents and proceeds accordingly. The time frame for processing a paper return is six to eight weeks; the time frame for processing an e-filed return is 10 days. Filing by mail substantially delays the processing of your return.
If your spouse claims your dependents and cashes the refund check, you and your spouse must resolve the matter civilly. The IRS doesn't involve itself in family disputes and recommends that all disputes involving such matters be referred to civil court. The IRS does, however, provide you with a copy of the cashed check if requested. If both you and your spouse claim the child, then the child’s exemption goes to the parent with whom the child lived with for the longest period of time; if the time is equal, the right to claim the child goes to the filer who had the highest adjusted gross income, or AGI. This is called the tiebreaker test.
If you and your husband are divorced or under a separation agreement, there may be a decree that outlines your tax filing arrangement. If a decree is in place, this decree supersedes the IRS dependency guidelines outlined in the first section.
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