Sign Up

Why sign in to the Community?

  • Submit a question
  • Check your notifications
or and start working on your taxes
cancel
Showing results for 
Search instead for 
Did you mean: 
bitting14
New Member

My ex and I claim our daughter every other year. pay all child care expenses. We share custody 50/50. My ex claims her this year, cna i still claim daycare expenses?

 
2 Replies
Hal_Al
Level 15

My ex and I claim our daughter every other year. pay all child care expenses. We share custody 50/50. My ex claims her this year, cna i still claim daycare expenses?

Simple answer: No.

But taxes aren't simple. So, maybe (answer at the bottom). Be forewarned, this is going to be long and complicated.

 

First, For tax purposes, there is no such thing as joint (50/50) custody, regardless of what your legal or informal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. The IRS goes by physical custody, not legal custody. 

Yes, the IRS expects you to count the numbers of nights the child sleeps at each parent's home.

It is allowed  for you to arrange the child's schedules so that the child spends more than half the year with the father one year and more than half with the mother  the next year so that you are each the custodial parent in the year you claim the child, so that you can claim full benefits.

 

The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. Again, the IRS goes by physical custody, not legal custody. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.  Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf

 

 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 dependency 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: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

 

So, if you are the custodial parent, and the non-custodial parent is claiming the dependent this year, then yes, you can claim the dependent care credit. 

 

 

 

 

DeanM15
Expert Alumni

My ex and I claim our daughter every other year. pay all child care expenses. We share custody 50/50. My ex claims her this year, cna i still claim daycare expenses?

If you are the custodial parent for IRS purposes, then you may claim then Dependent Care Expense credit and the Earned Income Tax Credit. Generally, the custodial parent is the parent with whom the child lived for the longer period of time during the year. 

 

If you each have the child for an exactly equal amount of time, then the Tiebreaker Rule comes into effect. The custodial parent is the one with the higher adjusted gross income. 

 

The IRS is unconcerned with what your divorce decree says about custody, it will always look first to the number of days the child stays with each parent. 

 

**Say "Thanks" by clicking the thumb icon in a post
**Mark the post that answers your question by clicking on "Mark as Best Answer"
Dynamic AdsDynamic Ads
Privacy Settings
v