I am filing as single with a FSA DC of $2,000. Can my ex-husband claim that $2,000 for child care expenses since he is claiming our son and we still have a joint account?

[Anita01 · Accepted solution]

No, only the spouse with whom the child lived for the most nights (the custodial parent) can claim the Child Care credit.  You would enter the child in your return.  At the end, the child's status would show as Nondependent-for EIC and Child care Only if you are allowing the noncustodial parent to claim the child as a dependent.  what that means is that you can pass the right to claim the child's personal exemption and the child tax credit to the other parent if you give them an 8332 form, but you cannot give them the Earned Income credit or the Child care credit.

[efmatthews]

Thank you for your response but now I have a follow on question. We have joint custody of our son and get him an equal amount of time each year. In addition, our divorce decree specifies that we take turns claiming him on our taxes. I claimed him last year so that's why he's claiming him this year (I have him listed as a nondependent). So do I still need to provide him with an 8332 form? Also, will he never be able to get the EIC or child Care credit on the years he is allowed to claim him per the divorce decree?

[Anita01]

Yes, you do need to give him an 8332.  The IRS does not recognize 50/50 custody.  There are usually an uneven number of nights in the year and wherever the child stays the most determines custodial and noncustodial parent and, yes, you do actually have to keep a calendar if the nights are close in number between you.  Only the custodial parent can claim the EIC and Child care credit.  Those credits don't transfer with an 8332.

[efmatthews]

Thank you very much. Last questions. One, since only the custodial parentmer can claim the child care credit, then only that person should have the FSA for dependent care, correct? Two, will a new 8332 be required for each year the the noncustodial parent claims the child? Three, does the 8332 need to be submitted to the IRS?

[Anita01]

Yes, the custodial parent should have the FSA, yes, a new 8332 would be required for each year.  You can also file one for future years that is in effect until you revoke it, but that would give your ex the right to claim the child in all years., and yes, your ex needs to file the 8332 with the IRS when he claims the child,   You can fill it out in the program, print it ,sign it and  give the paper to him.  It would be under Federal Taxes, Other Tax Topics

[efmatthews]

Thank you!!