Hello,
I am trying to find out proper way for me to do my taxes as divorced, paying child support for 2 children and 50% of custody with me.
When I was married to my ex-wife, I'd claim one of my children as dependent and the other one was claimed by her. After we divorced, since my income is higher, I started to pay her spousal support and child support for both children.
Last year, I claimed both children as my dependents, since they are indeed my dependents. And so they are hers too, to my understanding.
Now she is attacking me over text and email (she is really out of control), that her tax forms were rejected. She is accusing me of false information and telling me I cannot claim both children. As I speak to my attorney about it, I wonder if anyone can answer these questions.
1. Do I have to tell my ex-wife how I do my taxes? This is confidential, so I don't think I have to give her any information at all.
2. What is the proper way to claim dependents in our situation? Should my ex and I claim both children as dependents or this cannot be done?
3. What she wants is for me to claim one child while she claims the other? It is correct?
Any information is appreciated.
thank you!
If you are both strictly following the rules, there should be no need for you to speak to each other about who is claiming what regarding the children. It sounds like the two of you have just been making decisions without regard to the tax laws.
Here is how it works:
For divorced or separated parents or parents who live apart, the custodial parent, if eligible, or other eligible person who the child lived with for more than half the year (183 nights in 2019), can claim head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, and the earned income credit. The non-custodial parent, if allowed by divorce decree or consent of the custodial parent on form 8332 or similar signed statement, can claim the dependency and child tax credit. For post-2008 divorce decrees or agreements, form 8332 or similar signed statement is required. The child tax benefits cannot be split any other way.
In tax law, there is no such thing as 50/50 custody. One parent or the other is the custodial parent who the child lived with more than half the nights of the year. The parent who can't claim either the custodial child benefits or the dependency should not even enter the child or their tax return.
Only the parent where the children physically live more than half the nights of the year has the automatic right to claim the children as dependents. Since 2019 had 365 days, more than half is 183 or more nights. The definition of dependent in this case does not include payment of support, only where the children live. There can be no such thing as 50/50 custody since it is based on the number of nights and there is an odd number of nights. The IRS does not follow state court orders.
If you are not the parent where the children lived more than half the nights of the year, then the only way you can claim them as dependents is if you get a signed dependent release form 8332 from the other parent and submit it along with your tax return. Form 8332 allows you to claim the children or child as a dependent and you will get the $2000 child tax credit if you are eligible, but form 8332 does not transfer the ability to file as head of household, or to claim the child and dependent care credit, or to claim EIC, because these benefits always stay with a parent who has custody more than half the nights of the year, but these benefits cannot be waived, transferred, or shared.
If you are not the parent with custody more than half the nights of the year, then you need to indicate in TurboTax that the children lived with you less than half the year (less than six months). The program will then ask if you have a signed form 8332. If you indicate no, then you can’t claim them as dependents. If you indicate that yes, you have a form 8332, then the program will claim the children for the tax credit but will not invalidate the other parent’s tax return if the other parent tries to claim them for head of household status or EIC.
If you are not the parent with custody more than half the nights of the year, you need to file an amended return and correct your dependent claim. You will be required to re-pay any excess refund. If the amended return is postmarked after July 15, you may also be billed for interest and late payment penalty. Your ex will be unable to e-file this year even if you file an amended return. Your ex should prepare a correct tax return that correctly claims the children as dependents if they lived with her more than half the year. She will have to print and mail her return.
If you don’t amend your return, and your ex files a return that also claims the children as dependents, then the IRS will send investigation letters to both parents and the parent who is not entitled to the dependent claim will be required to pay back any excess refund plus interest and penalties.
All of this is covered in IRS publication 501 under the section “special rules for children of divorced or separated parents.” https://www.irs.gov/forms-pubs/about-publication-501
If you and your ex agree to each claim one dependent, then your ex must give you a signed form 8332 releasing the dependent claim for one of the children. You will file an amended tax return that indicates that the children do not live with you and that you have a signed form 8332 for one of the children, which must be included with your return when you mail it. You will need to re-pay part of your excess refund. Your ex will file a tax return listing both children in which she indicates that they both live with her but that she gave you a signed form 8332 for one of them. She will be allowed to claim EIC and dependent care for both children if she qualifies, and will get the child tax credit for one of the children.