divorced parents

[rsalci]

My ex is claiming our child as dependent - per our settlement agreement.

I want to know if I can use Head of Household filing status (not dependent), using our same child, because she lives with us the same number of days.

Is the ex allowed to claim her as her dependent if she lived with me longer? 

[Bsch4477]

The ex is only allowed to claim her if you give them permission by giving them a signed form 8332. This is assuming that you are the custodial parent (the one with whom the child lived with the most nights). Should you give them the dependency, you can still file as Head of Household using that child and can also claim child care credit and EIC if otherwise qualified.  The other parent only gets child tax credit. 

Having written the above, your settlement gave the other parent the dependency and if you use IRS rules to avoid that, it is then a civil matter for the court to enforce.  The IRS pays no attention to divorce agreements. 

[HopeS]

No, only one person can claim the child as a dependent and or head of household. Your spouse or your return will be rejected if you both are using the same social security number for the child on your return. The custodial parent should claim the child and get head of the household status.

Generally, only one person may claim the child as a qualifying child for purposes of the head of household filing status, the child tax credit/credit for other dependents, the dependent care credit/exclusion for dependent care benefits, the dependency exemption, and the EITC.

See IRS Publication below for more helpful information:

Divorced and Separated Parents

@rsalci 

[Carl]

Whatever your decree may say doesn't matter to the IRS.  The IRS has their own set of rules for divorced parents, as to who can claim the child. Only a federal judge can change that. Since federal judges don't deal with separation, divorce or custody cases, I'm highly confident that will never happen.

Under the IRS rules, it's perfectly possible for who the IRS recognizes as the custodial parent to change year to year. Only the custodial parent as defined by the IRS can claim HOH, provided of course they meet the other requirements for that filing status. This is true even if the custodial parent signs IRS Form 8832 giving the non-custodial parent the right to claim the child for that year.

[rsalci]

i have gotten 3 different replies, making it more confusing to me.

my ex is the custodial parent, but the child lives equal times with both of us.  This is her year to claim our child. But since the child also lives with me equal time - I thought I could take Head/Household status - NOT claiming the child and NOT taking any of the associated credits. Just to get the status H/H.

So now am I to understand that I cannot do that?

[Carl]

It's all covered in IRS Publication 504 at https://www.irs.gov/pub/irs-pdf/p504.pdf

[xmasbaby0]

The IRS would tell you to count up the actual number of nights the child spent with you.  There cannot be an equal number except in a leap year.  Who had the child for at least 183 nights

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[Bsch4477]

The confusion is the definition of the custodial parent and that lies at the heart of the situation. The IRS defines the custodial parent as the one with whom the child lives the most nights. Since the number of nights in the year is an odd number, both of you can’t be the custodial parent. That aside, since you and ex have agreed to 50-50 custody, the simplest solution is to agree that one of you is the custodial parent every other year. That custodial parent would give the other parent a signed form 8332 to allow that non-custodial parent to claim the dependency and child tax credit. But that non-custodial parent must file as single if unmarried. The custodial parent can file as head of household and claim child care credit and EIC even though that parent gave up the dependency. That may be confusing and counter intuitive but that is the tax law.