Possible claim mistake with ex-husband

[anajadee]

Needing help guys!! We have a 50/50 divorce settlement--no child support, 50/50 scheduled parenting time, and we each alternate years on claiming her with our taxes. I claimed her for 2019 (my year) and he was supposed to claim her for 2020. I didn't realize I filled it out wrongly when I filed my taxes back in the spring this year, so I claimed her for 2020 as well (so it looks like I claimed her two years in a row). He is filing his taxes late and he brought this to my attention when it wouldn't allow him to claim her. What do I need to do to fix my mistake? I will make a note mentioning that even though our settlement says 50/50 parenting time, looking back at our calendar and the days that he canceled on his parenting days--I have had her more days than he did for that year. We have a high conflict situation, so I'm fearful this could get ugly very quickly. 

What should I do? 

[macuser_22]

You might have been doing it wrong in the past.

Here are the rules and IRS reference documents.

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Custodial Parent
These are a paraphrase of the IRS rules for divorced or separated parents that live apart.


There is no such thing in the Federal tax law as 50/50, split, or joint custody. The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year. That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the legal custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent  in Pub 501

https://www.irs.gov/publications/p501#en_US_2020_publink1000220904

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-The Earned Income Credit
-The Child and Dependent Care Credit
-The Health Coverage Tax Credit

The non custodial parent can only claim: (Child would be listed as dependent)
- The child as a dependent
- The Child Tax Credit or credit for other dependents

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

[Mike9241]

custodial parent defined - the one who has custody of the child for the greater portion of the year (counting nights the child spent with the parent) and that parent paid more than 1/2 the cost of keeping up the household where the taxpayer and child lived. 

while the IRS says the custodial parent gets to claim unless they furnish the non-custodial parent with form 8332 not so with the courts. you are right about things getting ugly since the decree says 50/50. your ex could take you to court for contempt for violating the divorce decree.  as to the ex skipping days, you need a lawyer to see if anything can be done. 

to fix your filing you would need to amend your 2020 removing the dependent 

1) you still get HOH filing status.

2) you need to supply your ex with a signed form 8332

https://www.irs.gov/pub/irs-pdf/f8332.pdf 

3) your spouse can claim the child but does not get HOH filing status. 

4) the ex will have to paper file and attach form 8332 (the form is needed because according to you he did not meet the definition of a custodial parent - custody nights)