@krisia91 wrote:
Hi, we got divorced in august 2023 and put in our agreements that we would alternate claiming our son. No other form was filled out. It is his father's year to claim our son. He did spend more nights with me. Thank you so much for answering.
In this case:
You enter your child in the program. Answer that he lived with you more than half the year, that there is a custody order, and you will give the other parent a signed form 8332. Your child will not be your dependent, but will qualify you to file as head of household (if you meet the other tests) and claim EIC and the dependent care credit, because those three benefits always stay with the parent who had custody more than half the year and can't be waived, shared or transferred.
You should also give your ex a signed copy of form 8332 specifying which years they may claim the child. You can fill out the form one year at a time or you could give a blanket specification (all odd years).
https://www.irs.gov/pub/irs-pdf/f8332.pdf
In your ex's tax software, they will indicate they had custody less than half the year, but they do have a signed form 8332. They will claim the dependent and the $2000 child tax credit, but not the other credits, which can't be transferred to the non-custodial parent. They will be required to mail the original signed copy of form 8332 to the IRS within 3 days of e-filing the rest of their return.
If your ex indicates the child lived with them more than half the year, the software will let them claim the dependent and all the other credits, but this will be incorrect. If they do this, and file first, you will be blocked from e-filing. Your remedy in that case is to print your return, sign it and mail it. In about 9 months, the IRS will send letters to both of you to investigate the dispute. You would reply with proof your child lived in your home more than half the year, state that you gave the other parent a form 8332, and provide other proof that the IRS asks for.
Also note, these special rules end in the year the child turns 18, or is considered legally emancipated (if that is different than age 18 in your state). From that point, you would follow the normal rules of residency and support to see who can claim the child as a dependent. The custody order doesn't apply and form 8332 is ignored when the child turns 18 or is legally emancipated.
