claiming a dependent with divorce

[JAB22]

I have divorce papers from 2012 in the parenting plan it states ex can claim dependent on even years and I on odd years. Child has always split households 50/50 until 2019 child has lived with me. Child only goes over to ex's every other weekend and a little extra for spring break and winter break. Child is 15 so they choose they do not want to be there and ex does not make the child do what they do not want. So for the year 2019 tax filing was fine it was my year to claim. Now comes the ex's year to claim 2020 which he did but dependent has not lived in that household.  I understand the parenting plan should be updated, which I am working on. So my question is what can I do as far as claiming? Does my ex legally have the right to claim the child if they did not live in that household because the parenting plan was not updated?  

[Critter-3]

You have 2 issues ... on the IRS side you are the custodial parent and have the superior right to claim the child  however the divorce decree says the other parent gets to claim the dependent in 2020.  If you do not allow this then you are fine with the feds but in contempt of a court order and can be in trouble for that if the other parent presses charges.

NOW ... because you are the custodial parent you still can claim the child for the HOH  filing status and the EIC & child care credits.   By waiving the right to the dependent exemption the other parent only gets the CTC.   And the same goes for all the prior tax years ... there is no such thing as 50/50 custody in the IRS rules and since there are usually 365 days in a year the child cannot have possibly lived with both parents MORE than 1/2 the year unless you time it perfectly each year.  

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  under the residency test in Pub 17

https://www.irs.gov/publications/p17#en_US_2017_publink1000170899
 
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

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332

[JAB22]

Ok understandable, I am about fair and I understand I should have updated the plan earlier but I didn't think my ex would try and claim the child being that the child did not live in their household. So how would I go about  still claiming the child for the HOH  filing status and the EIC & child care credits? and  waiving the right to the dependent exemption so the other parent only gets the CTC. They have already filed their taxes. Also, what happens with the stimulus package 3 that is going on? Will my ex get all benefits from that or will this apply to that as well?

[Critter-3]

Simply follow the interview screens in the dependent section to make this election.  

[JAB22]

Thank you your information was very helpful.