It's tax time again and many couples facing divorce are confused about how they should file, who can claim the children and many other issues. As a lawyer and former tax professional I will attempt to answer some of the basic questions here.

If you were still married on December 31, 2009, you must file as either Married or Married Filing Separately. Even if you were separated for all or part of the tax year, the fact that you were still legally married will determine your filing status. If you choose to file separately, you may not claim Head of Household status and you cannot claim certain tax credits, such as earned income credit. The best filing status for the maximum refund is usually Married and filing together.

So, who claims the children? This depends on two factors. If you are filing together it is not an issue. However, if you are filing separately, the parent who had the children in the home for 6 or more months of the year is entitled to claim them. If the separated couple wishes, they can each claim a child (if there is more than one). It is common in divorce settlements for one parent to claim the children in even numbered years and the other parent in odd numbered years. This is usually left to the final divorce orders and would not apply if the divorce is not final. If the parents cannot agree, it is usually best to allow the residential (custodial) parent to claim the children until the divorce is final or unless there is a court order.

Please note that it is never a good idea for a couple to file as single and head of household and claim the earned income tax credit while still married. Even if your spouse has abandoned you and your family and you do not know where he/she is located, your tax filing status is married until the appropriate court issues a divorce decree. You could be subject to audit, penalties and interest in addition to repaying the tax refund. This is particularly true if both parents attempt to claim the same children; the Internal Revenue Service will flag those tax returns for audit.

If you have specific questions about your tax situation as you go through a divorce process, consult a tax professional or a good divorce attorney. Commercial tax preparation companies may not understand the complexities of divorce. The Porter Law Office does not engage in tax or divorce consultation outside the state of Kansas. Any information in this article should not be used to substitute for the specific advice of a qualified professional who is knowledgeable with your situation.