How do I claim half custody of my child?

[estevez-chris419]

Me and my child's mother have 50/50 custody. How do I claim that on my taxes?

[macuser_22 · Accepted solution]

These are a paraphrase of the IRS rules for divorced or separated parents that live apart.

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.

https://www.irs.gov/publications/p17/ch03.html - en_US_2015_publink1000170877T his 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 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). And yes they are that picky.

See Custodial parent and noncustodial parent  under the residency test in Pub 17

https://www.irs.gov/publications/p17/ch03.html#en_US_2015_publink1000170891

Only the Custodial parent can claim:

-Head of Household

-Earned Income Credit

-Child Care Credit

The non custodial parent can only claim:

-The Exemption

- The Child Tax Credit

See Special rule to divorced or separated parents (or parents who live apart).

https://www.irs.gov/publications/p17/ch03.html#en_US_2015_publink1000170897

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.

[dotf22]

ok so I definitely am the custodial parent, but my ex is saying he's going to beat me to filing so he can take the credit, so I want to send my custody agreement...shouldn't I do that?  I'm going to file right away but if he gets his w2 first then he will .   I don't want to go back to court if he does so trying to be proactive now.Can I just send the custody agreement that shows i'm 100% legal and 70% physical so it prevents him from filing and getting to claim him?   I won't go back to court so he'd just get to i guess.   :(   Anyway, if there is a form I can use to just have custody filed let me know I guess?
And thank you!!!

[macuser_22]

If you are the custodial parent entitled to the exemption and you are not releasing to to the non-custodial parent, just file your return claiming the dependent.   If he e-files first, then your return will reject, so you will have to print and mail it.

Both of you will receive your refund if you both claim the child, but within a year or more (the IRS is slow) you will both receive a letter asking if you claimed the child en error and to amend if you did.   Do not ignore the letter.  Respond that you are the custodial parent entitled to the exemption and you did not release the exemption.  

The IRS will follow up with a second letter asking for proof, such as school records, receipts etc, to show that the child lived with you (start collecting that now so that you will have it).   After receiving the proof from both parents the IRS will make a determination as to who is entitled to the refund and who must pay it back with interest and possible penalties.

[dotf22]

wow...that's perfect!  are you 100% sure that's how it works?...   Thank you sooo much!!

[macuser_22]

No guarantees - the IRS makes the final determination bases on the information received form both parents.

[SweetieJean]

There is no such thing as exactly 50/50 custody. You have to count the nights. Whoever the child spent at least 183 nights out of 365 in 2015 gets to claim the child.

[Critter]

Your situation is covered in IRS publications 501 and 504, which you should definitely read.

http://www.irs.gov/pub/irs-pdf/p501.pdf

http://www.irs.gov/pub/irs-pdf/p504.pdf

Briefly, there are 5 tax benefits of having a child dependent: Dependent exemption, child tax credit, dependent care credit, head of household, and eligible for EIC. The tax code assigns all 5 benefits to the parent who has custody more than half the time.  Custody is defined as where the child sleeps at night.  (If the child is on a sleep over of a camping trip etc, the day is counted toward the parent where the child would have slept if not for the event in question.)

So for the IRS there is no 50% custody, you have to count nights, and one parent will almost always have more than the other.  If for some reason the # of days is exactly equal (like in a leap year, 366 days, exactly 183 nights for each parent) then the tax benefits are assigned to the parent with the higher income.

If the divorce decree says that the non-custodial parent (parent with less than 50% time) gets the dependents in a certain year, the custodial parent must fill out and sign a copy of form 8332 and give it to the other parent, this releases the tax benefits to the other parent.  However, the form 8332 only transfers the dependent exemption and the child tax credit. Eligibility for Head of Household, Dependent Care Credit, and EIC always stays with the custodial parent and cannot be transferred.  The only way to transfer all 5 tax benefits from one parent to the other parent is to arrange the children's sleeping schedules so that the desired parent qualifies for the particular year.

If you are the custodial parent, then in the years when you give your ex the form 8332 allowing him or her to claim the dependent exemption and child tax credit, you can still qualify for EIC, Head of Household and the Dependent Care benefit.  You do this by carefully answering the questions in the dependent interview in turbotax by saying yes you have a dependent, and yes you are signing a form 8332 to allow the ex to claim the exemption.  Turbotax will assign a special status to your children of "Non-dependent, use for HOH and EIC".