If I have divorce papers from 2011 that states me and my ex husband have to alternate years to claim our daughter for the dependent credit. Can I claim EIC every year and

[Livelove322]

I heard that I can claim the EIC every year since my daughter lives with me 100% of the year...So if he claims before me and tried to get it than I can fight that correct? Other question is I see that I am supposed to sign a form so that he can claim her as a dependent..One year I tried just doing the EIC and he said that I couldn't do that and that his taxes were rejected because a person has to claim both the EIC and the dependency credit... So he didn't claim her and the dependency credit was never even claimed. I figure this is false and he tried to claim both.. But wanted to double check that if I claim the EIC he should still be able to claim the dependent credit correct? Also if he does claim only the dependent credit since the divorce was from 2011 I see that he is required to have me sign a form..If I don't sign the form can he still claim the dependent correct? Reason I ask this is because he hasn't tried to see our daughter in 4yrs and he refuses to talk to me period so he won't ask me to sign any papers because he refuses to see or talk to me... I just want to also find out if it's required to have that paper and he doesn't have it than can I claim the dependent credit? Cause if he has to have the paper and can't take credit than no one takes it... Sorry I know this is long, i'm just trying to understand everything... I didn't know if he could claim her without the paper and I figured he is lying about splitting credits because from what I see I should be able to claim the EIC every year and he is telling me no I can't... Also because of no communication now i'm curious on the dependent credit..

[DawnC0 · Accepted solution]

The only parent who has the right to claim a child as a dependent is the parent that the dependent spent the most nights with.  That parent (the CUSTODIAL parent) is entitled to the Child Tax Credit, and also to file Head of Household, claim the Earned Income Credit, and the Dependent Care Credit.  The other parent (the NON-CUSTODIAL parent) is entitled to nothing.  

The IRS doesn't follow agreements, and there is no such thing as 50/50 custody and you can't split benefits or tax credits.  You have to count the number of nights the child spent with each parent.  Most years have an odd number of nights so one parent has more than half.  If he erroneously claims the child, the IRS will figure it out and he will have to pay back any credits he claimed that he is not entitled to. 

If the custodial parent is supposed to give the dependent to the non-custodial parent in certain years, that is done by the custodial parent giving the non-custodial parent a signed form 8332 Dependent Release.  This allows the non-custodial parent to claim the Child Tax Credit and exemption only.  The ability to qualify for Earned Income Credit, Head of Household, and the Dependent Care Credit, always stays with the custodial parent and can't be waived, shared, or transferred.

If you are the custodial parent, then in TurboTax you say that the child lived with you more than half the year; that you have a custody agreement with the other parent; and you are giving the other parent a signed form 8332.  TurboTax will properly allow the child to qualify you for EIC and Head of Household.  You will also be allowed to take the Dependent Care Credit for that child if you qualify.  

The non-custodial parent will say they had custody less than half the year; that there is a custody agreement, and the other parent did give them a signed form 8332.  This will give them the Child Tax Credit/exemption only.  Only the custodial parent can give the non-custodial parent a Form 8332.  The non-custodial parent cannot rightfully claim anything without the 8332.  And even if they have it, it only entitles them to the Child/Other Dependent Tax Credit.  

If he e-files before you and takes the credits, you will need to mail your return as his actions will prevent you from e-filing.  However, the IRS will process your return normally and issue your refund.  Later, if he does not amend his return, the IRS will intervene.  

[hiii_98]

What if both parents are custodial parents by the divorce agreement.  Why would either parent sign a 8332 which labels one parent as the NONcustodial?