Claiming Dependents for Divorced Parents with 50/50 parenting time

[Android22]

Me and my ex had a court settlement that gives her legal custody over our son, but we split parenting time 50/50. Our parenting plan has provisions for different holidays, so in realty the amount of overnights with each parent is slightly different every year. It was stipulated that we will alternate every year which of us "gets" 183 overnights for the purpose of claiming him as a dependent. However I later found out that she decided to claim our son for the year when she only had 182 overnights per our settlement on the basis that in reality he spent more overnights with her due to holidays. So we both ended up filing him on our taxes and most likely will get flagged by the IRS. 

So here are my questions: Should I just file an amended return instead of waiting for an audit? If we get audited will IRS pay any attention at all to our court order? If not will they at least consider it as a mitigating factor for claiming my son in relation to penalties? We have a shared parenting time calendar on a court ordered platform. Would this serve as a proof for the IRS with whom child spent most overnights? Any other thoughts/suggestions on the matter will be appreciated..

[Hal_Al · Accepted solution]

Q. Should I just file an amended return instead of waiting for an audit?

A. Yes.

Q. If we get audited will IRS pay any attention at all to our court order?

A. No. They go by their own rules. Somebody is going to have to prove the 183.

Q. If not will they at least consider it as a mitigating factor for claiming my son in relation to penalties?

A. Probably not.

Q. We have a shared parenting time calendar on a court ordered platform. Would this serve as a proof for the IRS with whom child spent most overnights? 

A. It'll serve as "some" proof, depending on the other proof. 

This may be helpful in your negotiations with the ex:

 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.

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)"

You can if you are the custodial parent. 

The custodial  parent is the parent the child lived with for more than 182 nights  in 2022).

[Android22]

Thanks for the reply and info! Regarding the proof of residence for IRS. How else can someone prove that a child was with them for certain number of overnights? Since she is a custodial parent, she gets mail from doctor's office and school, but even that can not really prove the amount of overnights in my mind. 

[Hal_Al]

I can only guess, but the bottom line is most going to be her designation as custodial parent

[Android22]

Right.. I guess my question would be if I would have more overnights this year, what can I show IRS if we get into the same conflict next time. 

[Hal_Al]

That's a difficult task. I would keep a log for sure. 

You said "Our parenting plan has provisions for different holidays, so in realty the amount of overnights with each parent is slightly different every year. It was stipulated that we will alternate every year which of us "gets" 183 overnights for the purpose of claiming him as a dependent."

But that must physically happen. It is allowed  for you to arrange the children'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. But, in practice that requires cooperation. Even then, the IRS is going to be skeptical if you force a confrontation. 

My opinion (and it's only an opinion), the IRS is going to side with the legal custodial parent.