My husband and I have been separated for over six months this year, living separately. I am claiming kids (he agrees), can I file head of household?

[rjs]

When you say "this year" I assume you mean 2023. Since your husband did not live with you during the last 6 months of the year, you can file as head of household if you do not file jointly with your husband, you paid more than half the cost of keeping up your home for the year, and a child whom you can claim as a dependent lived in your home for more than half the year.

[Hal_Al]

Yes, you can file Head of Household (HoH).  He must use Married Filing Separately (MFS) status, he cannot use single or HoH.   If you can agree to do so, you can still file Married Filing Jointly (MFJ), for 2023, since you are still legally married. 

[Opus 17]

You must be separated since July 1 (or earlier) and pay more than half the cost of maintaining your home.  If the children lived with you more than half the nights of the year, AND more nights than they lived with the other parent, the other parent’s permission is not needed for you to claim them.  If they lived with you more than half the nights of the year but with the other parent more nights than you, you can still claim them and written permission is not required, but verbal permission is a good idea.  

[DBWilliams15]

Is there something in writing from the IRS that states that the separated parent who has more time with the child/children can claim dependents without permission from the other parent?  

Thank you in advance for your anticipated response.

[KeshaH]

The official language about claiming dependents is Section 152(c)(4)(B) of the Internal Revenue Code, but you can review the IRS's article about claiming a child when the parents are divorced, separated, or live apart.

[Hal_Al]

There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use:

 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 dependency to him.

 So, it's a 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: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

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You can if you are the custodial parent.  The custodial  parent is the parent the child lived with for more than 183 nights in 2024