If I share 50/50 custody of my kids with their dad do I claim 6 months of 12 months for them being in my house?

[ReginaM]

No, you can not claim half of a child on your tax return.  Here is how the IRS determines who is eligible to claim your children. 

The IRS clarifies who can claim the child in Publication 504  To determine which person can treat the child as a qualifying child to claim these tax benefits, the following tiebreaker rules apply.

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

  • 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.

  • 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.

So, in most cases, because of the residency test , a child of divorced or separated parents is the qualifying child of the custodial parent.

However, the child will be treated as the qualifying child of the noncustodial parent if the rule for children of divorced or separated parents (or parents who live apart)  will be treated as the qualifying child of his or her noncustodial parent if all four of the following statements are true.

1. The parents:

  a. Are divorced or legally separated under a decree of divorce or separate maintenance,

  b. Are separated under a written separation agreement, or

  c. Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

[fanfare]

enter six months and one day to get the dependent.

[Opus 17]

The child is automatically the dependent of where the child actually physically spent more than half the nights of the year.  It only has to be 1 day more than the other parent, but it must be more than half.  If this is you, pick 7 months or anything higher.  Turbotax interprets "6 months" as exactly half the year.  

The IRS goes by number of nights in each home and does not follow "50/50" or any other kind of custody order.

If the child actually did spend exactly half the nights with each parent, then the parent who can automatically claim the dependent is the parent with the higher income.

If you are not the parent with more than half the nights and you want to claim the child, or if you are the parent with more than half the nights but you want the other parent to claim the child, post more details and we can give you the procedures. 

[macuser_22]

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@ReginaM wrote:

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.

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I would like to clarify the above statement.

If the child lived with each parent for the same amount of time, BUT MORE THAN HALF THE YEAR, then the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.

That can usually only happen if both parents and the child all lived together for a part of the year.   In that case, both parents meet the residency requirement to claim the child so the tie-breaking rules prevail. 

That situation is very different from separated parents that live apart.

Here are all the rules:

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 501 for full information.

https://www.irs.gov/publications/p501#en_US_2018_publink1000220904

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 501 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  in Pub 501

https://www.irs.gov/publications/p501#en_US_2018_publink1000220906

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-The Earned Income Credit
-The Child and Dependent Care Credit
-The Health Coverage Tax Credit

The non custodial parent can only claim: (Child would be listed as dependent)
- The child as a dependent
- The Child Tax Credit or credit for other dependents

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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