Can I claim HOH but not claim the child as a dependent?

[joshp14]

I have split 50/50 legal custody with my son. Her mother and I dont live together and we switch back and forth every year who claims him as a dependent.  I have filed head of household every year and only claim him as a dependent every other year. This year is not my year to claim him as a dependent and for some reason this year I cannot get Turbo Tax to accept HOH filing status without having my son listed as a dependent. Any help?

[ColeenD3]

Your child does not have to be your dependent to claim HOH, but he must live with you over half the year. You must be the custodial parent.

Custodial parent and noncustodial parent.   The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.

  If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year.

  A child is treated as living with a parent for a night if the child sleeps:

You may be able to file as head of household if you meet all the following requirements.

1. You are unmarried or considered unmarried on the last day of the year. See Marital Status , earlier, and Considered Unmarried , later.
2. You paid more than half the cost of keeping up a home for the year.
3. A qualifying person lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the qualifying person is your dependent parent, he or she doesn't have to live with you. See Special rule for parent , later, under Qualifying Person.

[joshp14]

Thanks for the reply. How do you make TurboTax understand that? Every time I delete my son as a dependent, it makes me change my filing status to single. How do I file HOH status but remove him as a dependent?

[Opus 17]

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@joshp14 wrote:

Thanks for the reply. How do you make TurboTax understand that? Every time I delete my son as a dependent, it makes me change my filing status to single. How do I file HOH status but remove him as a dependent?

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The way it is supposed to work in the program is you list the child as a dependent, and indicate the child lived with you more than half the year (pick 7 months or longer since the program interprets 6 months as exactly half).  The program will then ask if you are allowing the other parent to claim the child as a dependent through a court order or form 8332.  When you say yes, the program should keep the child as your qualification for HOH but not claim the child as a dependent for the child tax credit.

You will need to print form 8332, sign it, and give it to the other parent, so they can file their return correctly.  

If the child does not live with you more than half the year, you can't use the child to qualify for HOH.  That always stays with the parent where the child lives more than half the year and can't be waived or transferred, even with a court order.  And if the child lived with the other parent more than half of 2020, then you can't claim the child as a dependent unless the other parent gives you a form 8332.

The IRS does not recognize "50/50" custody, you have to actually count the number of nights the child lived in each parent's home.  Since 2020 was a leap year, it is possible that a child could live with each parent for exactly the same number of nights -- 183 -- if this is the case the parent with the higher income gets to claim the child as a dependent and neither parent can use the child to qualify for HOH, since to qualify for HOH, the child must live "more than half" the year with one or the other parent. 

[fanfare]

do you move your kid from one home to the other every year?

If not, only one of you is head of household. you're filing a false tax return.

[joshp14]

No, he lives at both houses throughout the year.