I let ex hub claim our son every other yr with a notarized agreement (not 8332 form). Can I reclaim my son every yr moving forward? He’ll refuse to sign/send form 8332!

[Critter]

Get someone else to support your position.

[TreeLover]

Like a friend or family member?

[SweetieJean]

How old is the boy? Does he attend school at your location? Visit the doctor?

[TreeLover]

He’s 12, he’s on his dad’s medical insurance and dental so I let him take him to those appts. I had him sign and notarized an agreement between us in 2013 that we would alternate the child dependency exemption each year moving forward. I think I shot myself in the foot trying to be fair...he had all prior years before that Bc I was in college. So I changed it once I started working to alternating each year rather than him getting every year like he wanted.

[TreeLover]

Oh and yes he attends school, I take care of all his school registration and stuff

[Hal_Al]

There is a way to split the tax benefits. This may be helpful in your negotiations with the ex: 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. So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters. Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[TreeLover]

I do claim eic every year as I only make 13k with my job! My fear was he will change jobs to lesser money and take away my eic....that’s what triggered all this to begin with. He just claims our son every other year for the CTC I think and dependency.

[Hal_Al]

If the child lives with you, he can never claim EIC. You've been doing it right. You just need to point out to him, that his every other year agreement does not include EIC (or Head of Household or day care credit). That's the IRS rules. You can not make an agreement to let him claim EIC. That's not allowed . He cannot take away your EIC

[TaxGuyBill]

I agree with Hal_AL.  If the child lives with you more than the child lives with your Ex, you can ONLY give away the (1) exemption and (2) Child Tax Credit.  You can keep (3) EIC, (4) Head of Household (if you qualify) and (5) Dependent Care Credit (for daycare, if you qualify).  Your Ex can never claim those (unless the child lives with him more than the child lives with you).

[TreeLover]

But my problem is proofing he’s with me more. I don’t know what kind of receipts or records to obtain....school records? How does that prove he’s with me more? It just shows he’s in school there.

[TreeLover]

Proving. Sorry, silly iPhone and auto correct! Grrr

[TreeLover]

Oh and he lives with his dad 3 nights a week and me 4 nights a week. I have 55% father has 45%, so I think he CAN claim EIC if he qualifies with a lesser paying job in the future! I just don’t know what kinds of records or proof to obtain to prove my son is with me Friday day until Tuesday mornings (55%). He makes way more income than I do, FOR NOW! He’s trying to get a lesser paying job in the future Bc he’s been trying to get out of child support and wants every year taxes (which he will never get)...I just need to obtain proof and I don’t know what kind of proof. He takes him to doctors and dentist appts and I go too most times if not working. But he’s got him on his dental and medical. I only have state Medical-Cal insurance.

[macuser_22]

In order to claim the EIC the child must live with the parent at least 183 nights (or more) during the tax year.  The IRS will require a counting of nights when it is close.  Parents that have close to equal time should keep day logs of each night the child spent with them.   Written day-to-day logs of residency and activities are the best proof.

3 nights a week is (3X52=) 156 nights.   4 nights a week is (4x52=) 208 nights.

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

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897">https://www.irs.gov/pub...>

[macuser_22]

Note:  "...if he qualifies with a lesser paying job in the future!..."   The job has nothing to do with the basic requirements of the the residency test for claiming EIC.   The 183 night rule must be first met before the earnings are considered.   Earning  only determine the amount of EIC once the 183 night (more than half the year) rule is met.

[Critter]

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). That can usually only occur if both parents lived with the child at the same time.   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/ch03.html">https://www.irs.gov/publications/p17/ch03.html</a> - en_US_2015_publink1000170891)

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

See Special rule to divorced or separated parents (or parents who live apart).
<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html">https://www.irs.gov/publications/p17/ch03.html</a> - 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.