This question came from one of our users:
"Hello! I have twin boys that are 15 years old. I was never married; however, in my court agreement the father gets to claim one of the boys on his taxes. He is in jail and may do some time. What are my rights for claiming both of my kids on my taxes if he does time?"
A person might be able to claim one or more of their kids on their taxes if the spouse is in jail, but the current court order splitting the claim to the children on each spouse’s taxes would first need to be modified. A motion to modify a parentage agreement may be appropriate if there has been a significant change to one of the parent’s living, income, or other situations, such as being incarcerated.
General Information:
- Court Order and Tax Claims
Since there is a court order that the father claims one of the twins, that order generally applies unless modified by the court. But you may be able to modify it if circumstances have changed significantly (e.g. the father is in jail).
- IRS Rules on Claiming Dependents
The IRS allows the custodial parent (the one the kids live with for more than 6 months of the year) to claim dependents. If the father is in jail and can’t provide support, you may have grounds to claim both kids, but this depends on:
- The existing court order.
- If he files taxes and claims a kid despite being in jail.
- Legal Modification
If the current court order is an obstacle, you may need to file a motion to modify the order. The court may consider the father’s inability to fulfill his financial obligations while in jail as a reason to modify.
- IRS Form Considerations
If the father filed Form 8332 (Release/Revocation of Claim to Exemption for Child by Custodial Parent) previously, you’ll need to address that when you claim both kids.
To avoid legal and IRS problems, contact a family law attorney and/or tax advisor familiar with your state’s laws and federal tax rules.
Designed for general information use only. The content above does not constitute legal advice or the formation of an attorney/client relationship.
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