I share 50/50 custody of our son. Who gets to claim him?

[brianbobbitt]

He goes back and forth every other week.  Each parent will have him for more time every other year due to Easter/Spring Break  and Christmas holidays.  We have been divorced since 2002.  Last year, we went to court and were granted 50/50 custody with alternating holidays in even and odd years for each of us.  I am disabled with no income and my ex owns his own business.  He told me I couldn't claim him since I have no income.  The subject of who would claim him on their taxes was not addressed at the most recent hearing and my ex wants to be able to continue to claim him since he's self employed. Can I claim him this year since I will have him for more time?  I could use the refund too.

[bwa · Accepted solution]

The phrases "joint custody", "primary custody", "legal custody", "shared custody", "50/50 custody", etc., don't appear in the tax statutes.  Rather, when discussing dependents, the custody that matters is actual physical custody counted on a night by night basis, regardless of what type of custody is granted in a divorce or separation agreement.

In 2012, 50/50 physical custody is possible because the year has an even number of days.  However, even if each parent had a child 183 then neither would be a custodial parent, because neither would have had the child more than 1/2 of the year.

The one who had custody for more than 1/2 of the year can claim the child as a dependent, child care expenses, earned income tax credit and, if eligible, Head of Household.

The custodial parent can transfer the exemption to the non-custodial parent by providing them with a signed copy of Form 8332.  It is their choice to do so.   If required to do so by a divorce decree or child custody agreement, and the child's other parent does not follow the agreement, your recourse is in the family court, as the IRS will not attempt to enforce such agreements.

[kurukishu]

BWA's answer is wrong, regarding tiebreaking. IRS Publication 501 clearly states:

"If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI)."

And

"If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year"

[TaxGuyBill]

@kurukishu   Unless it is leap year, a year has 365 nights.  That means that the child lived with ONE of the parents more than the other, so AGI is not used for determining who claims the child.

In the event it was a leap year (366 days) and the child spent 183 nights with each parent, THEN AGI would be the tiebreaker.

[SteamTrain]

And it might not be worth fighting over anyhow.

@brianbobbitt stated  "I am disabled with no income".  
.....If you have no income, there is no child credit for you to claim if you file a tax return with zero income.... Certainly, you have to be living off f some source of funds, but depending on the source, they may not allow you to get anything by attempting to force your claiming the child as a dependent on your tax return.  

You may be far better off making sure your spouse gets a few days more than 50% of the time with the child every year, and agree between you that he sends you half the advantage he gets for using the child as a dependent...switching back and forth every year is a nightmare...

[SweetieJean]

"I am disabled with no income".  No income of any type?  How do you support yourself and the child?

[VolvoGirl]

The original question WAS 3 years ago.

[SteamTrain]

ahhhhh...geeeze !

[macuser_22]

@kurukishu - You need to read it again.   Before the tie breaking rules come into play *both* parents must meed the residency test (child lived with them *more* than 1/2 the year).    If exactly 50/50 then neither parent meets the test and neither can claim.   About the only time that the tie breaking rule that you cite comes into play for separated parents is if both parents lived together with the child and then split the time that they were separated with the child - that can happen but it is rare.    In most cases that rule is used when the parents and child all live together but cannot decide which will claim the child.

[Shadow519]

So, would that make the child's grandparents eligible because they support both 1 parent and child? Or would the working parent have priority because of the split custody? 

[macuser_22]

---

@Shadow519 wrote:

So, would that make the child's grandparents eligible because they support both 1 parent and child? Or would the working parent have priority because of the split custody? 

---

There is no such thing as "split custody" in Federal tax law - only physical custody for determining a Qualifying Child dependent (who the child physically lived with more than half the tax year - more than 183 nights.

If that person is a grandparent and not the parent then the grandparent could claim the child (assuming all other qualifications are met).   If a parent also lived with the child (and grandparent) then either one could claim the child if the parent agrees, otherwise the parent prevails (** see below- Qualifying Child of More Than One Person).   (However, if the grandparent is supporting the parent then there probably would be no, or very little tax advantage for the parent to claim.

---Tests To Be a Qualifying Child---
(Must pass ALL of these tests)

NOTE: If a child passes all of these tests he must say “yes” on his/her own tax return (if he/she files one) that another taxpayer CAN claim him/her as a dependent even if they DO NOT claim him/her)

1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother,stepsister, or a descendant of any of them.

2. The child must be (a) under age 19 at the end of 2018, (b) under age 24 at the end of 2018 and a full-time student* for any part of 5 months of 2018, or (c) any age if permanently and totally disabled and must be younger than you (or your spouse if filing jointly).

3. The child must have lived with you for more than half of the year (There are exceptions for temporary absences such as school, illness, business, vacation, military service).

4. The child must not have provided more than half of his or her own support for the year.
See Worksheet 3-1. Worksheet for Determining Support
https://www.irs.gov/publications/p17#en_US_2017_publink1000171012

5. If the child meets the rules to be a qualifying child of more than one person, you must be the person entitled to claim the child as a qualifying child.

6. The child is not filing a joint return.

7. The child must be a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico

 *A full-time student is a student who is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any 5 calendar months of the year.

See IRS Publication 17 for more information.

https://www.irs.gov/publications/p17#en_US_2017_publink1000170876

======

**Qualifying Child of More Than One Person

[Quote from IRS Publication 501]
Sometimes, a child meets the relationship, age, residency, support, and joint return tests to be a qualifying child of more than one person. Although the child is a qualifying child of each of these persons, only one person can actually treat the child as a qualifying child to take all of the following tax benefits (provided the person is eligible for each benefit).

1. The child tax credit or credit for other dependents.
2. Head of household filing status.
3. The credit for child and dependent care expenses.
4. The exclusion from income for dependent care benefits.
5. The earned income credit.

The other person can’t take any of these benefits based on this qualifying child. In other words, you and the other person can’t agree to divide these tax benefits between you.

Tiebreaker rules.

To determine which person can treat the child as a qualifying child to claim these five tax benefits, the following tiebreaker rules apply.

1 - If only one of the persons is the child's parent, the child is treated as the qualifying child of the parent.

2 - If the parents file a joint return together and can claim the child as a qualifying child, the child is treated as the qualifying child of the parents.

3 - If the parents don't file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.

4- If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year.

5 - If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year, but only if that person's AGI is higher than the highest AGI of any of the child's parents who can claim the child.

Subject to these tiebreaker rules, you and the other person may be able to choose which of you claims the child as a qualifying child.
[end quote]

https://www.irs.gov/publications/p501#en_US_2018_publink1000220917