Divorce agreement: "share joint custody of 3 kids." I have "primary custody of 2" he has "primary custody of 1" I have mine 65% of the time. What docs do i need?

[greenstripedgira]

He is wanting me to fill out a form 8883 (which I think was inaccurately told him, as this form has nothing to do with dependents, custody, divorce, anything related) to state that he has my two children 35% of the time. I think he means Form 8332, but as I understand that - that would be me revoking my right to claim the children.   

If my divorce decree states that we share joint custody, that I have primary custody of 2 and he has primary custody of 1 ===  and it spells out the visitation agreement that has me having mine for more than half the year ....  do I need to fill out form 8332 and have him sign this??  or what do I need to do?

[macuser_22]

The IRS does not give a hoot about  divorce decree (unless it was pre 2009 and contained certain wording).   They only care about who had physical custody more then half the year.

That does not mean you can disregard the decree or you could be held in contempt by the court for not providing the 8332 form, but that would need to be separate local court action not involving the IRS.

Here are all the rules:

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 501 for full information.

https://www.irs.gov/publications/p501#en_US_2018_publink1000220904

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 501 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 legal 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  in Pub 501

https://www.irs.gov/publications/p501#en_US_2018_publink1000220906

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

The non custodial parent can only claim: (Child would be listed as dependent)
- The child as a dependent
- The Child Tax Credit or credit for other dependents

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 the non-custodial parent 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.

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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 for non-custodial parent:
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

[greenstripedgira]

Thank you!  that is a lot of information.  So in layman easy to understand ...

I easily meet the IRS standard of custodial parent who has 2 kids more than 50% of the time. The other parent has 1 child more than 50% of the time.  I would plan to claim two dependants and assume the other parent would claim one dependent.   As the custodial parent of two children according to the IRS - do I need to have the non-custodial parent fill out a form stating that he will not claim my two children? I could see that it would be feasible for me to fill out the 8332 form for the one child I am IRS non-custodial.  So filling out Form 8332 three times.

I fill out Form 8332 once to not claim child #1 and the other parent fills out Form 8332 two times to not claim children #2 and #3 ??    Is this what is required?

[fanfare]

you don't need any forms if you are both in agreement on how to proceed.

[Opus 17]

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@greenstripedgira wrote:

Thank you!  that is a lot of information.  So in layman easy to understand ...

I easily meet the IRS standard of custodial parent who has 2 kids more than 50% of the time. The other parent has 1 child more than 50% of the time.  I would plan to claim two dependants and assume the other parent would claim one dependent.   As the custodial parent of two children according to the IRS - do I need to have the non-custodial parent fill out a form stating that he will not claim my two children? I could see that it would be feasible for me to fill out the 8332 form for the one child I am IRS non-custodial.  So filling out Form 8332 three times.

I fill out Form 8332 once to not claim child #1 and the other parent fills out Form 8332 two times to not claim children #2 and #3 ??    Is this what is required?

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No. 

The parent where the child lives more than half the nights of the year has the automatic right to claim that child as a dependent with no forms required. 

If you physically have custody of child 1 and child 2 more than half the nights of the year, you can automatically claim these children on your tax return with no release forms.  If the other parent has actual physical custody of child #3 more than half the nights of the year, then the other parent can claim child #3 with no forms of any kind. 

The only reason you fill out form 8332 is if you want to release child #1 or #2 to the other parent, and the other parent would give you a signed form 8332 if the other parent was going to release child #3 to you.

[greenstripedgira]

I guess what I don't understand is "what does it mean for the custodial parent to "release an exemption" to the non-custodial parent.

I would like to claim the two that are mine according to IRS standards, but do not know what "release and exemption" means = does that mean I can't claim my two?   That is where I am getting hung up.  Sorry for the not understanding.

[macuser_22]

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@greenstripedgira wrote:

I guess what I don't understand is "what does it mean for the custodial parent to "release an exemption" to the non-custodial parent.

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As explained above, the custodial parent is the parent that had physical custody.  You only "release the exemption" (8332) if YOU  NOT want to claim the child yourself and are allowing the other parent to claim.

If YOU are claiming then  YOU do not release anything or provide a 8332.

[Opus 17 · Accepted solution]

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@greenstripedgira wrote:

I guess what I don't understand is "what does it mean for the custodial parent to "release an exemption" to the non-custodial parent.

I would like to claim the two that are mine according to IRS standards, but do not know what "release and exemption" means = does that mean I can't claim my two?   That is where I am getting hung up.  Sorry for the not understanding.

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The only parent with the automatic right to claim a child as a dependent is the parent where the child lives more than half the nights of the year.  This is the "custodial parent" in IRS language, and is based solely on where the child actually physically stayed, and not any designation in a custody order from a state court.

If you are the custodial parent, you can claim the child tax credit, and also use the child to qualify for earned income credit, head of household, and the dependent care credit, if you meet the other qualification for those benefits.

To "release" a dependent means that you agree not to claim a child as a dependent so that the other parent -- the non-custodial parent -- can claim the child instead.  You sign a statement that says "I agree not to claim the child for 2020, and allow my ex to claim the child, even though the child lived with me more than half the nights." (That's not the exact language, of course.  But that's what it means.)

If you have actual physical custody more than half the nights of the year for child #1 and #2 and you plan to claim them, you don't need to release anything and you don't need anyone to give you a release; that claim is yours by right.  By the same rules, if your ex has custody of child #3 for more than half the nights of the year, and your ex is going to claim child #3, your ex does not give anyone a release and your ex does not need a release from you. 

[greenstripedgira]

yes, thank you so much!!!   i think replies were getting crossed in the wires. This is what I was thinking should be done, but got a little confused. Thank you so much!!!