Claiming child - Divorced Parents?

[atdenig86]

We are Divorced, with 50/50 custody of our child. We rotate each year on who can claim our child. She didn't work at all last year and per our legal agreement she is supposed to claim our child this year.... but if she didn't work and earned $0 income is she still able to claim him or can I go ahead and claim our child whom I clearly supported 100%???

[Carl]

The IRS doesn't care about any agreement you may have. They have their own rules that are not subject to the rulings of any court below a federal judge. Since federal judges don't handle divorce or custody cases, you have to go by the IRS's rules. macuser has posted below what applies to your situation, as we understand it, based on the information you provided in your post.

[atdenig86]

I know which rules apply for claiming on opposite years and what needs to be done but, how can she file a tax return with no income and would she even,be eligible to claim our child?

[macuser_22]

Nothing prevents a Taxpayer from filing a tax return even if claiming a dependent would not result in a refund, but why they would do so, you would have to ask them (and know that they has no taxable income).    

If you are not the custodial parent for tax purposes, where the child lived at least 183 nights or more in 2017, then  you would need a 8332 form from the other parent whether that parent files a tax return or not.

If the child did live with you more than 183 nights then you don't need the 8332 form.   Either way, it makes no difference to you whether the other parent files a tax return or not - the requirements are the same either way.

[lillyanathomas]

I've worked this year and last year and someone is claiming my daughter

[germancelaya]

more than 183 for Father means 184+? every one else( mom, mom's boyfriend, aunt, at least 1/2 or the year or 182? days per night ... Please review this answer.

[macuser_22]

@germancelaya - The tax does not say how many days, it says: "*more* than half the year".

The IRS regulations (as they say in the Publication 17)  means counting the number of nights that the child spend with the parent.   To claim as a "Qualifying Child" dependent that number must be at least half the year.

Since there are 365 nights in a non-leap year then half (365 /2) is 182.5 nights, therefore *more* than half is 183 or more nights.  (For a leap year with 366 nights, half would be 183, so *more* then half would be at least 184 nights.)

[macuser_22 · Accepted solution]

Custodial Parent
These are a paraphrase of the IRS rules for divorced or separated parents that live apart.

[Note: Unless the parents have been separated at all times during the last 6 months of the year, these rules do not apply.]

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.

https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

This assumes that the child is under age 18 (in most states).  Once the child becomes an adult (Emancipated child), custody becomes mute and these rules no longer apply.(See examples 5 & 6 in Pub 17 for more information)

There is no such thing in the Federal tax law as 50/50, split, or joint custody. The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year. That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent  under the residency test in Pub 17

https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
-The Child Tax Credit

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.

-----------------
Post-1984 and pre-2009 divorce decree or separation agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
2. The custodial parent will not claim the child as a dependent for the year.
3.The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

* The cover page (write the other parent's social security number on this page).
* The pages that include all of the information identified in items (1) through (3) above.
* The signature page with the other parent's signature and the date of the agreement.

Post-2008 divorce decree or separation agreement.   The noncustodial parent cannot attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The custodial parent must sign either Form 8332 or a similar statement whose only purpose is to release the custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.

Form 8332 rules:
Attach this form or similar statement to your tax return for each year you claim the exemption for your child. You can claim the exemption only if the other dependency tests in your tax return instruction booklet are met.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal for an IRS e-file Return). See Form 8453 and its instructions for more details.

This must be done within 3 days of your e-filed return being accepted by the IRS.
http://www.irs.gov/pub/irs-pdf/f8453.pdf