Divorce is pending, have 1 child (minor) with 2 parents as dependent

[geforce04]

I am the higher income non-custodian parent but pays for all of child's medical insurance and also paying child support. How do I file my taxes? Can I claim my child as dependent? Along with my 2 parents as dependent. Can I use the medical insurance paid as deductions? If divorce is not finalized by end of filing taxes deadline, what do I do?

[KarenL4]

Hi, sorry to hear about the pending divorce.

• Child support payments are not deductible to the payer (you) nor taxable to the recipient (your ex)
• Your filing status would either be Head of Household or Single if you are divorced by 12/31/22.  The divorce decree may be part of deciding who can claim the child as a dependent.  Consider consulting your attorney about this issue.
• If you are still married at 12/31/22 you would either continue to file jointly with your ex or use married filing separately. If you use Married filing separately, there are some tax benefits you can't get. This article does a good job of explaining the trade-offs.
• You can continue to claim your child as a dependent on your tax return if he or she lived with you for a longer period of time during the year than with your ex-spouse. In this case, you're called the custodial parent. (It's possible for the non-custodial parent to claim a dependent child if the custodial parent signs a waiver pledging that he or she won't claim it.)
• If you continue to pay a child's medical bills after the divorce, you can include those costs in your medical expense deduction even if your ex-spouse has custody of the child and claims the child as a dependent.

This article also has a lot of great tax tips and info around getting divorced.

Please cheer below if this is helpful.

[sdammons]

There are rules for claiming a child of Divorced or Separated Parents. Generally, you can claim a child as a dependent if he or she is your Qualifying Child . Generally, the child is the qualifying child of the custodial parent. The custodial parent is the parent with whom the child lived for the longer period of time during the year.

However, the child will be treated as the qualifying child of the noncustodial parent if the special rule for children of divorced or separated parents (or parents who live apart) applies. See Publication 504, Divorced or Separated Individuals for more information. This rule requires in part, that both of the following conditions are met:

• The custodial parent signs a Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent or a substantially similar statement, and
• The noncustodial parent attaches the Form 8332 or a similar statement to his or her return.

If the custodial parent releases a claim to exemption for a child, the noncustodial parent may claim the child as a dependent and as a qualifying child for the child tax credit or credit for other dependents. However, the noncustodial parent may not claim the child for the purpose of claiming head of household filing status, the earned income credit, the credit for child and dependent care expenses, the exclusion for dependent care benefits, or the health coverage tax credit.

To claim your parents, four tests must be met. They are:

1. Not a qualifying child test,

2. Member of household or relationship test,

3. Gross income test, and

4. Support test.

To see if you will qualify for the Head of Household filing status which is more advantageous than Married Filing Separately, see the TurboTax Guide to Filing Taxes as Head of Household.

Unfortunately, Child Support is not deductible but Medical Expenses  incurred for your dependents are.

 

[LaceyL]

Thank you for reaching out to in our Ask the Experts event!

Situations of divorce, particularly with children, are complicated.  Generally speaking, the custodial parent has the right to claim children as dependents. That said, the custodial parent can sign Form 8332, allowing the non-custodial parent to claim a dependent on their tax return.

Medical insurance, even if you cannot claim the dependent, is deductible as long as it is paid with after-tax dollars, so if that medical insurance is paid through your employer, it is likely pre-tax and will not be deductible on your tax return, because it is not included in your taxable income.  If you pay that insurance personally, not through payroll deduction, you can report it on Schedule A of your tax return included with other medical expenses.

If your divorce is not finalized by the end of the tax year, generally 12/31, you can file Married Filing Jointly (MFJ), or Married Filing Separately (MFS).  If you have not lived together for at least the last 6 months of the year, a spouse claiming a dependent can file Head of Household (HOH), but a spouse not claiming a dependent must file MFS.

[geforce04]

Can I claim the child without telling ex-spouse if she disagrees? Or this needs to be under court ruling?

[LaceyL]

Both parents can attempt to claim a child as a dependent, but ultimately only one can claim them.  When two parents try to claim the same child, the second parent to attempt e-filing their return will have it rejected.  They will then need to either paper file with the dependent, or remove the dependent and e-file.

If the second parent chooses to paper file, both parents will receive IRS notices and need to give additional information.  The IRS will determine who gets the dependent based on how many nights the dependent spent at each house.

I would recommend communicating with the other parent to aviod multiple IRS notices.

[KarenL4]

Hi, 

If there is not a formal agreement, generally the parent who lived with the child longest during the year claims the child. If there is a tie, there is a tie-breaker rule that is applied.  

It's also worth noting that the divorce agreement/form 8332 can assign the ability to claim a dependent, it does not help in cases where you would not otherwise qualify the non-custodial parent for these benefits:

• head of household filing status
• the earned income credit
• the credit for child and dependent care expenses
• the exclusion for dependent care benefits
• or the health coverage tax credit.

This IRS page provides more info.

Please cheer below if this answer is helpful.

[SuziM]

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