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My ex and I have a court order stating no matter who is claiming the child for the year, I am entitled to the EIC. What form does he need to fill out when he files his?

My ex husband and I have a court order in place,where we alternate years in claiming the child. However,in our order it also states that no matter who claims her for the year,whether it be him or me, I will always be entitled to the EIC. This coming tax year,he is going to claim her,since it is his year. What form does he need to fill out when he does his taxes so I am able to get the EIC from it? Last time two years ago,he forgot to do it,and sent the money to child support,since he was due in back child support. He is now caught up,however,the child support,and the taxes/EIC are two different things. So he can't give the money to child support to help him make future payments,where he doesn't have to pay anything in child support itself. He has someone do his taxes for him,but I need to remind him which form he needs to fill out,or he will forget. But I cannot recall how it works,and what form he needs to fill out.

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My ex and I have a court order stating no matter who is claiming the child for the year, I am entitled to the EIC. What form does he need to fill out when he files his?

I certainly don't mean to be crass about it, but the IRS doesn't care what your court order says.  They have rules as to who is entitled to an EIC regardless of who claims the child as a dependent.  To be eligible to claim the child as a dependent for EIC purposes, your child must:

Be appropriately related to you

Have lived with you for more than 1/2 the year

Meet the age requirement test

Not file a joint return

You can look in IRS Publication 596 to see an expanded definition of these items.

If the child did not live with you for more than 1/2 the year, you cannot claim the child as a dependent for purposes of the EIC even if you claim the child as a dependent for the $4,050 dependent exemption.

Who has to file what pieces of paper with their return depends on who the actual custodial parent is, the parent with whom the child lived for more than 1/2 the year.  If that is you, you need only claim the child for EIC purposes if you are allowing the father to claim the child for purposes of the dependent exemption and the Child Tax Credit.  The TT program will walk you through this in the dependent interview area.  In this case, he needs a Form 8332 from you to claim the child.

If the child lived more than 1/2 the year with the father, you cannot claim the EIC.

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4 Replies

My ex and I have a court order stating no matter who is claiming the child for the year, I am entitled to the EIC. What form does he need to fill out when he files his?

I certainly don't mean to be crass about it, but the IRS doesn't care what your court order says.  They have rules as to who is entitled to an EIC regardless of who claims the child as a dependent.  To be eligible to claim the child as a dependent for EIC purposes, your child must:

Be appropriately related to you

Have lived with you for more than 1/2 the year

Meet the age requirement test

Not file a joint return

You can look in IRS Publication 596 to see an expanded definition of these items.

If the child did not live with you for more than 1/2 the year, you cannot claim the child as a dependent for purposes of the EIC even if you claim the child as a dependent for the $4,050 dependent exemption.

Who has to file what pieces of paper with their return depends on who the actual custodial parent is, the parent with whom the child lived for more than 1/2 the year.  If that is you, you need only claim the child for EIC purposes if you are allowing the father to claim the child for purposes of the dependent exemption and the Child Tax Credit.  The TT program will walk you through this in the dependent interview area.  In this case, he needs a Form 8332 from you to claim the child.

If the child lived more than 1/2 the year with the father, you cannot claim the EIC.

My ex and I have a court order stating no matter who is claiming the child for the year, I am entitled to the EIC. What form does he need to fill out when he files his?

Correct.  A court order cannot override Federal Tax law.   Only the custodial parent where the child physically lived for more than half the year can claim the EIC.  For tax law purposes, custodial means physically custody, not legal custody that a court might award.


If you are the custodial parent where the child physically lived for more than half the year (183 nights) then:

When you enter the dependent, you say that he/she is "Your child" (not you and your spouse if remarried),
he/she lived with you the whole year,
“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement,
and "yes", the other parent is claiming this year.  

That will give you the EIC,  Child Care Credit and Head of Household filing status if you otherwise qualify.

The other (non-custodial) parent can claim the child’s exemption and child tax credit *only* and needs a signed 8332 form to do so.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
Hal_Al
Level 15

My ex and I have a court order stating no matter who is claiming the child for the year, I am entitled to the EIC. What form does he need to fill out when he files his?

So, if you are the custodial parent, there is no form you need from your Ex, to claim EIC. You just do it.

My ex and I have a court order stating no matter who is claiming the child for the year, I am entitled to the EIC. What form does he need to fill out when he files his?

Assuming you are the Custodial Parent, I want to emphasize that you should give your ex Form 8332.  If you don't, it is likely he will claim the child 'the wrong way', and it will cause complications with your EIC.
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