Tax Year Prior to 2020: Head of household: If you are divorced, both parents each support their own home, and the child spends 50% of the time with each parent, can both parents claim HoH?

[andre-fiji]

My ex and I divorced 2 years ago and we alternate who gets to claim the child as a dependent. Last year was the first year we filed separately and I claimed her as dependent and filed as HoH. This year is my ex's turn to claim the child. 

Now the question: My ex is filing as head of household and claiming our child as a dependent this year. Even though I answered the questions saying "I have court agreement and other parent is claiming the child", turbo tax still  suggests and finds no errors with me filing as HoH. Can I still claim head of household without claiming her as a dependent since I support her at my own house for 50% of the year (she stays with me M-T, with mom W-Th and we rotate weekends)? If both parents claim head of their own households, will that be a problem? If so, what happens? If this is wrong, I assume I'd have to give the money back and pay interest but is there any other fines if I am misunderstanding this rule?

Thanks!

[rainydaze]

Even though you "share" custody at 50%, the IRS rules state that the parent who has the child more during the year is the custodial parent and that parent is the one who can claim Head of Household.  Since there are 365 days/nights in the year, one of you must have one more night than the other (I'm just restating the rules.).  

This means that both of you cannot be the "custodial parent" per the IRS rules.  Only one of you can claim HOH on the basis of your daughter - and the right one to claim her is the person who is the custodial parent (the custodial parent i also the one to claim dependent and child care credit as well as EIC if applicable).  The non-custodial parent may only claim the child if Form 8332 is signed by the custodial parent to give the non-custodial parent the right to claim the chid tax credit, additional child credit, and exemption for the child.  If both of you claim her for the purposes of HOH, the one who doesn't have the right to claim (based on the IRS's ruling at a later date) will be subject to interest and penalty.  If the IRS believes you intentionally committed fraud, they can charge you with more (and they can also go back as far as they want to inspect prior year returns - it is not subject to the 3 year "rule" of audits when fraud is suspected).  

I don't believe that the system will let both of you claim HOH on the basis of the same child.  You must still enter your daughter's SSN to e-file HOH (there is a area where you have to enter your qualifying person that you are not claiming on your return) and if your ex already claimed her and filed, your return is likely to be rejected.  

IRS Pub 501 has a section regarding children of divorced/separated/never married parents that goes into more detail.  

[beanspole]

single but HOH

[WKins2]

No. According to the IRS the parent who has the child more during the year is the custodial parent and that parent is the one who can claim Head of Household.  Since there are 365 days/nights in the year, one of you must have one more night than the other. There isn't a way for both of the parents to claim the child in order to claim HOH. 

[ediben11]

If a married couple living and working in separate states. Each parent has one child as dependent, can they both file as Head of Household ?  or only one as HoH the other is Separate ?

[SusanY1]

For certain married couples living apart, it is possible that each could qualify as Head of Household.  Qualifying assumes the following

• The couple meets the IRS definition of "considered unmarried" and does not live together for any part of the last six months of the year OR that the couple has a formal legal separation agreement (not available in all states). 
  • Certain instances of living apart that are intended to be temporary including time away for military service, school, medical treatment, etc. do not qualify a couple to be "considered unmarried" for the purpose of determining filing status. 
• Each individual independently meets the Head of Household criteria by providing more than 50% of the cost of the upkeep of a home for himself or herself and at least one unique qualifying child or qualifying dependent.  

You will find a great deal more about qualifying as Head of Household here: Guide to Filing Taxes as Head of Household.

Please note that it is not possible to file single while still legally married by meeting the requirements of living apart for six months to be "considered unmarried".  This definition only applies in order to qualify to file using the Head of Household status.  

[asvet921]

Would this situation change if there were multiple children.  For example, if the parents were divorced, both owned their own houses and had 3 children which they split time with 50/50. Each parent claims one of the 3 kids as a full time dependent and each year they would alternate claiming the 3rd child as a dependent. With each parent still claiming at least one full time dependent every year, could they claim head-of-household? 

Wasn't sure if this would be any different than the 1 child scenario but figured I'd ask.

Thanks!

[ErnieS0]

Yes. You can both claim head of household if you don’t live together as Tax Expert SusanY1 says in her answer above your question. 

You would both have a custodial child to qualify. 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, or the exclusion for dependent care benefits.

See 

Children of Divorced or Separated Parents (or Parents Who Live Apart)

We’re the divorced or legally separated parents of one child. May each parent claim the child as a d...

@asvet921

[Hal_Al]

Q. With each parent still claiming at least one full time dependent every year, could they claim head-of-household? 

A. Yes. But, to meet the rules, you would have to schedule the time that that child (the one that qualifies you for HoH) stays with you, to be sure it's more than half the year (making you the "custodial" parent, for tax purposes). Keeping a log, in case of an IRS inquiry, would not be unheard of. 

Repeating what others have said, for tax purposes, there is no such thing as 50/50 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. The IRS goes by physical custody, not legal custody. 

[asvet921]

Got it, thanks for the reply. 

  So, if I'm understanding this correctly, it seems the HoH doesn't have to do with an individual person who has their own residence (home/apt..etc) and can claim someone as their dependent exactly.

  It seems more linked to the dependent(s) (as a group, not individuals necessarily), as a means to define a position of a 'family unit' as a whole, and who is the primary placement holder for those dependents during the year (even if legally split "50/50" ).  

[Hal_Al]

Q.  HoH seems more linked to the dependent who is with the primary placement holder?

A. Essentially yes, but not exactly.

The main requirements for Head of Household are: a taxpayer that

1) is single or did not live with their spouse at any time during the last half of the tax year.

2) has at least one closely related dependent (usually a child) that lived with the taxpayer for more than half the year

3) pays over half of the support of the household expenses, including rent / mortgage, utilities, food.     .

https://turbotax.intuit.com/tax-tips/family/guide-to-filing-taxes-as-head-of-household/L4Nx6DYu9