@naturallight wrote:
Yes, our divorce agreement explicitly says that I have 2 of 3 kids for 183 nights in odd years. In even years I only have 1 of 3 kids for 183 nights.
First, the question is not what the order says, but where did the children actually physically live? If you didn't follow the order due to some unexpected circumstances, you could run into difficulties. If the children don't actually physically live in your home at least 183 days, you can't use the order to create a "legal fiction" for tax purposes.
Now, let's assume that child A and B actually physically lived in your home at least 183 nights, and you delivered a signed form 8332 to your ex allowing them to claim the children for the child tax credit. You are indeed still allowed to file as HOH, and claim the dependent care credit for child A and B. If your return was rejected, it's either because
- you made a mistake
- your ex made a mistake and accidentally claimed them as if they lived in her home more than 183 days
- your ex intentionally claimed them as if they lived in her home more than 183 days
On your return, you need to answer for child A and B that they lived in your home more than half the year (pick 7 months or longer in the drop down menu, since the program interprets 6 months to be exactly half, and exactly half is not more than half.) Then you indicate there is a custody order, and you are releasing the children on form 8332. Turbotax should show their status as "non-dependent, use for dependent care and EIC only". If the child is listed as a full dependent, you need to go back and change your answers.
If your return is correct, print it out, sign it, and mail it. The IRS will pay your refund, and sometime in the next 9 months or so, they will send letters to both you and your ex to straighten things out. You will need to be prepared to show that the children actually physically lived in your home at least 183 days. It doesn't really matter if your ex made a good faith mistake or a bad faith claim the IRS will figure that out.
If, on the other hand, the children didn't actually physically live in your home more than half the year, you can't claim the dependent care credit of HOH because you can't use the order to create a legal fiction if the children don't actually live with you.
