Divorced with children - Question about form 8332

[hramk1]

I am divorced, and am claiming our two sons as dependents. I've been doing this since the divorce. This is the first year that me and the other parent have questions about form 8322, since we are trying to be sure that we've gotten everything correct. Our decree has nothing in it stating who can claim the children, so it's never been brought up between us. The other parent will not be claiming them, but wants to know if they need the form, as well. What will happen in both of our situations if either of us files without the form?

[bergmara]

This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons."  Can you provide the IRS publication where this is stated?  I just want to make sure I filed correctly in 2013.  I lived with my spouse and children up until September and I claimed all the child credits (EIC/HOH/Daycare/dependent) since it was in our divorce that I had the odd years. And then we split 50/50 the rest of 2013.  If custodial parent is determined based on AgI when we both had them equal time during the year   how would we know whose is higher?

[Hal_Al]

The custodial parent ( the parent the child lives with the most) has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332). The parent who is not claiming them does not need a form 8332. The parent claiming then does not need a form 8332, if he/she is the custodial parent.

There is a way to split the tax benefits. For future negotiations with the other parent  the following info may be of use: :

 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child , even when the custodial parent has released the exemption to him. 

For tax purposes, there is no such thing as joint custody, regardless of what your  agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent.

[bergmara]

"This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons."  Can you provide the IRS publication where this is stated?  I just want to make sure I filed correctly in 2013.  I lived with my spouse and children up until September and I claimed all the child credits (EIC/HOH/Daycare/dependent) since it was in our divorce that I had the odd years. And then we split 50/50 the rest of 2013.  If custodial parent is determined based on AgI when we both had them equal time during the year   how would we know whose is higher?

[Hal_Al]

See pages 17-18 of the instructions for form 1040. Yes, AGI governs who claims the child when time is equal.

You can claim HoH for 2013, only if you were legally divorced by year end, because you lived with your spouse during the last half of  2013.
See page 13 of the instructions for form 1040.

[bergmara]

Was I correct in claiming EIC in 2013?       Daycare?

[Hal_Al]

Maybe. Were you legally divorced and did you have the kids more than the ex, for the total year?

[bergmara]

"This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons."  Once again I ask about this statement.  I lived with my spouse up until September 2013 and divorce was final October 2013.  I claimed my 2 children per the divorce agreement.  If the "splitting of the  child" is not available for this circumstance and only on of us can claim the children fro any tax reasons then why wouldn't i be able to claim for EIC and child care since I was eligible for HOH & child tax credit?

[macuser_22]

@bergmara - The "6 month" rule only applies to parents that were not divorced, were separated under a written separation agreement, or were not married at the end of the tax year.
<a href="http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897" rel="nofollow" target="_blank">http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897</a>

[bergmara]

I have reviewed my Turbo tax filing and tried to rerun the 1040 but Turbo tax has allowed all of these deductions that I have taken.  I guess I will wait for the IRS to tell me what I have done incorrectly?

[Hal_Al]

Yes, you can claim everything for 2013; the child's exemption, child tax credit, EIC, day care credit, & HoH because you were legally divorced at year end and you had the child more  time than the ex did (or the exact amount plus the higher AGI) and only one of you is claiming the child for anything. The splitting rule was not relevant in 2013, but will be for 2014 and going forward.

[bergmara]

I think my spouse had the higher AGI but not sure since the spouse is uncooperative in divulging that information..and there is not detailed documentation about who had the children more or less..The spouse also claimed the children so the IRS will be notifying us.

[bergmara]

So when I claim them in 2015 I am only allowed the dependent exemption and child tax credit.  The ex will get the HOH, EIC and daycare credits?    If the ex's AGI is too high to qualify for EIC then will I be able to get the EIC?  But of course the ex has to share the AGI with me....

[Hal_Al]

Q.I am only allowed the dependent exemption and child tax credit.  The ex will get the HOH, EIC and daycare credits?  
A. Yes
Q. If the ex's AGI is too high to qualify for EIC then will I be able to get the EIC?
A. No. Only the custodial parent can claim EIC. For tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. Saying you had them equal time  may pass muster for 2013 (probably not) , but will not in the future.

[bergmara]

for 2014 I should file single and not HOH correct since the ex will be claiming the children?