My divorce paper say my ex-husband and I will each claim one child per year on taxes and split custody 50/50 but they live with me full time. Can I claim them both?

[Jenlynne]

He pays child support and is current. He has not split any other costs with me and I provide for my girls full time. I believe they spent about 10 nights with him in 2024.

[xmasbaby0]

There are divorce papers----and there are the IRS rules---which are not always aligned.   

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.  If the child is 17 or older the non-custodial parent gets the $500 credit for other dependents.

If you and the other parent have a signed agreement, you need to indicate in MY INFO that you have such an agreement.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[NCperson · Accepted solution]

@Jenlynne here is what gets confusing.... while a judge can say each of you trade off who claims the child, the implication of that order has to align with the IRS rules - what the judge says can't override the IRS.

by federal law, the custodial parent is the parent who the children live with at least 183 nights of the year.  There is no such thing as "50/50" in IRS parlance. 

So in actuality here is what occurs: 

1) in the year the custodial parent claims the child, it's easy, the non-custodial parent doesn't.

2) then in the other year BOTH claim the SAME child, but for different purposes.  The federal law only permits the custodial parent to give the non-custodial the right to claim the child tax credit, the other dependent credit and the two educational tax credits (AOTC and LLC).  Nothing else can be passed to the non-custodial parent. 

So the custodial parent can claim EITC and the dependent care credit, use the child to file HOH; those benefits can't be given or used by the non-custodial parent.  The judge may say the non-custodial parent gets to claim the child, but that doesn't mean the non-custodial parent can claim these benefits. 

make sense?