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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 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.


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