How do I claim both sons as dependents per divorce decree but only claim the younger son for HOH? (father gets to file as HOH for other son per decree)

[noraflan]

my divorce decree says I can claim both my sons as dependents on federal, state, city taxes.  Then it says I may claim HOH for my one son born in 2007 while my ex-husband per divorce decree gets to claim our older son born in 2003.  How do I get the children as dependents, yet only file HOH on one son?

Decree says " the mother shall be entitled to claim both children as dependents on her federal, state and local income taxes.  The parties acknowledge that father has parenting time with son #1 for more than half the year and may claim "head of household" as it relates to son #1.  The mother has parenting time for more than half the year for son #2 and may claim "head of household" as it relates to son #2 on fed, state, local....

[Phillip1 · Accepted solution]

First, head of household is determined by physical custody during the tax year - not the divorce decree. Your ex-husband can only use one of your son's for head of household filing status if your son slept in his home for 183 (184 days in a leap year) days of the year. If both of the son's lived with you for the majority of the year, you are the only one that can claim the children for head of household filing status.

If there is a son than lived with the other parent for more than half of the year that you can claim as a dependent, you will need to make sure that you indicate that the child lived with you for less than 6 months of the year, there is a custody agreement, and that the other parent is letting you claim your child as a dependent. 

Tax benefits for children are split as follows when the custodial parent allows the noncustodial parent to claim the children as dependents:

The parent that had physical custody gets:

• Earned income credit
• Child care credit
• head of household filing status

The noncustodial parent gets:

• Dependent exemption
• Child tax credit.

[macuser_22]

I agree with TTPhillip, the divorce decree cannot override Federal tax law.  If the decree actually says that each parent can claim one  child for HOH regardless of who the child lived with, then whoever wrote it does not understand  federal tax law.  Local decrees cannot override Federal law no matter what they say.  The decree is invalid in that respect.

If you are the custodial parent where the child physically lived for more than half the year (183 nights) then:

When you enter the dependent, you say that he/she is "Your child" (not you and your spouse if remarried),
he/she lived with you the whole year,
“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement,
and "yes", the other parent is claiming this year.  

That will give you the EIC,  Child Care Credit and Head of Household filing status if you otherwise qualify.

The child would be listed as "non-dependent EIC & Dependent Care only".

The other (non-custodial) parent can claim the child’s exemption and child tax credit only and needs a signed 8332 form to do so.
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If you are the non-custodial parent where the child did not physically live for more than half the year (183 nights) then:

When you enter the dependent, you say that he is "Your child" (not you and new spouse if remarried),
He/she lived with you zero months,
“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement, and
"yes” I am claiming this year.

That will give you the child's exemption, and child tax credit.  
 
The EIC, and Child Care Credits can only be claimed by the parent where the child actually lived.     

[noraflan]

Decree says " the mother shall be entitled to claim both children as dependents on her federal, state and local income taxes.  The parties acknowledge that father has parenting time with son #1 for more than half the year and may claim "head of household" as it relates to son #1.  The mother has parenting time for more than half the year for son #2 and may claim "head of household" as it relates to son #2 on fed, state, local....

[macuser_22]

As stated above, Federal law for HOH requires  that the child actual physically lived with the parent more than half (183 nights) to claim.  And divorce decree that says otherwise is invalid.

Here are all the rules with IRS references:

========================

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 17 for full information.

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170897">https://www.irs.gov/publications/...>

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 17 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  under the residency test in Pub 17

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170899">https://www.irs.gov/publications/...>
 
Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
-The Child Tax Credit

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.
<a rel="nofollow" target="_blank" href="http://www.irs.gov/pub/irs-pdf/f8453.pdf">http://www.irs.gov/pub/irs-pdf/f8453.pdf</a>