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kbarlament
New Member

If one of the separated parents is unemployed all year with no income, can the other parent claim all dependents?

there is a court ordered agreement from 10 years ago that states that each parent claims one child. She has $0 income to report this year and will not be filling a tax return. There was only one parent that provided for the children and she will not be claiming a child. Is it correct that the other parent can then claim both as dependents?

4 Replies
Critter
Level 15

If one of the separated parents is unemployed all year with no income, can the other parent claim all dependents?

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
https://www.irs.gov/publications/p17/ch03.html - 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).
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.

 

 

 


macuser_22
Level 15

If one of the separated parents is unemployed all year with no income, can the other parent claim all dependents?

@Critter#2 - if you are going to plagiarize my previous answer, please give credit or link to the answer.  The answer that you copied is a 2015 answer and (the broken links that you copied) are year out of date.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
macuser_22
Level 15

If one of the separated parents is unemployed all year with no income, can the other parent claim all dependents?

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.
<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_publink1000170877

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

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#en_US_2016_publink1000170897">https://www.irs.gov/pub...>

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 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.

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.
<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897">https://www.irs.gov/pub...>
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
DexterS
New Member

If one of the separated parents is unemployed all year with no income, can the other parent claim all dependents?

A custodial parent can complete IRS form 8332 -"Release/Revocation of Release of Claim of Exemption for Child by Custodial Parent"  The custodial parent gives this form to the non-custodial parent who attaches it to his or her tax return.

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