Ok ... what a court can do is require the custodial parent to release the dependent exemption to the non custodial parent and that will also include the Child Tax Credit. What the courts cannot do is release the rest of the child benefits ... that would be against the IRS regulations. Make sure the courts modify the decree according to the IRS regulations ... and only sign an 8332 for each tax year...don't give a blanket form for multiple tax years since that can cause complications later. If you don't like the changes you have the right to fight them ... ask your attorney.
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 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). That can usually only occur if both parents
lived with the child at the same time. And yes they are that
picky.
See Custodial parent and noncustodial parent under the residency test in
Pub 17
https://www.irs.gov/publications/p17/ch03.html - en_US_2015_publink1000170891)
The custodial parent has the right to claim all parts of the child benefits unless they choose or are required to complete a form 8332 to pass some of them onto the non custodial parent ... in that case this is how the benefits are split ...
Only the Custodial parent can claim: (Child would be listed as non-dependent
EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit
The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
- The Child Tax Credit
See Special rule to divorced or separated parents (or parents who live apart).
https://www.irs.gov/publications/p17/ch03.html - en_US_2015_publink1000170897
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.
