Do I get the EIC even though 2016 was my ex-husband's year to claim our child as a dependent?

[seahawk_day]

Do I still get the EIC even though 2016 was my ex-husband's year to claim our child as a dependent? My child lives with me more than half of the year and has done so since 2014.  (I didn't claim our child in 2014 nor did I file for the EIC).  I claimed our child in 2015 as a dependent along with EIC.  We have an agreement that every other year we claim our child as a dependent. 

***additional edit***

My ex husband and I legally share custody.

[Hal_Al · Accepted solution]

 Yes.

There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

 So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[Coleen3]

Per the divorced and separated parents rules, EIC and dependency do not necessarily go hand in hand. The custodial parent, the one the child lives over half the year, can still get the Head of Household filing status, the EIC and Child Care Credit. 

The screens can be tricky. Basically, if the question applies to residence, it pertains to Head of Household, Child Care and EIC. If the question is about claiming the child, it has to do with dependency.

You have to indicate that you are allowing the other parent to claim the exemption or that the other parent is allowing you to claim the exemption.

Dependency Questions/Non-custodial parent

What's Megan's relationship to you?

We know Megan is_, but we have to ask: Did she pay for most of her living expenses?

Do you have an agreement with Megan's other parent about who can claim her?

Is Megan's other parent claiming Megan per your legal agreement?

Are you letting Megan's other parent claim Megan for 2016?

 Head of Household Questions/Custodial parent

What's Megan's relationship to you?

How many months did Megan live with you in 2016?

Where did Megan spend the most nights in 2016?

Did a relative live in your home and help support Megan?

[seahawk_day]

Thank you!  I responded to all of those questions as indicated and just wanted to be sure.

[Hal_Al]

You can amend your 2014 return to claim the EIC. Just be sure the ex didn't claim it; he would have to amend his return too.

[seahawk_day]

I wondered about amending the 2014.  Our divorce decree does say that we share custody even though our child stays with me for the school year.

[Coleen3]

If you are the custodial parent, you are entitled to the EIC. However, if your ex-spouse claimed it, they will have to amend and pay that money back.

[Hal_Al]

The IRS goes by physical custody, not legal custody.  For tax purposes, there is no such thing as joint or shared custody, regardless of what your legal agreement or divorce decree says.