As the non custodial parent with a 8332 form, how do i file my taxes. Do i mark my son lived with me all year?i know the father will be getting the earn income credit

[Hal_Al · Accepted solution]

No. You answer that question for the time the child actually lived with you, even if it is 0 months*. The interview will then ask if the custodial parent has given you permission to claim the child. You will be allowed the Child Tax credit** but not the EIC. You also cannot claim the day care credit or use Head of Household filing status (unless you have a different qualifying person).

*For example, if you had the child every weekend; 52 weeks x 2 days =104 days / 30 = 3.3 months. Enter 3 when asked how long the child lived with you. Since you are the non-custodial parent, your answer must be something less than 6.

**For 2018 you only get the child tax credit. For 2017, and early years, you also got the dependent exemption deduction.

__________________________________________________________________________________________________________

 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/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 exemption to him.

 So, it's 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

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[Anonymous]

Would i qualify for head of household only, or would i need another child on my taxes ?

[macuser_22]

HOH and EIC both require that the child physically lived with you for more the  half the year.    The noncustodial parent that the child did not live with can only claim the child's exemption (prior to 2018) or the $500 credit (2018 and after) and the child tax credit if qualified.

[Anonymous]

My son has seen me all year, he just stay with his father more, i get every other weekend. So i would mark all year and send the 8332 form to the irs. Correct?

[rjs]

No, that's not correct. Read the first paragraph of Hal_Al's answer above.

[Anonymous]

Im confused, he said for all the time he actually lived with me, he has lived with me all year.  Just every other weekend.  

[macuser_22]

You must count the nights that he stayed with you.  

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 17 for full information.

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170897">https://www.irs.gov/publications/...>

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 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  under the residency test in Pub 17

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170899">https://www.irs.gov/publications/...>
 
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

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.

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If you are the non-custodial parent where the child did not physically live for more than half the year (183 nights) then:

When you enter the dependent, you say that he is "Your child" (not you and new spouse if remarried),
He/she lived with you 0-5 months (less then 6 months),
“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement, and
"yes” I am claiming this year.

That will give you the child's exemption (or 2018 credit) , and child tax credit.  
 
The EIC, and Child Care Credits can only be claimed by the parent where the child actually lived.     

[rjs]

Your son did not live with you all year if he was only with you every other weekend. When the IRS says "all year" they mean every single night of the year, all 365 nights. Every other weekend probably means 26 nights, or maybe 52 if he stayed 2 nights each weekend that he was with you.

[Anonymous]

This just started in August, before that it was one week on and one week off, so i had 7 months, so mark 7 months

[Anonymous]

The other parent is claiming 12 months to get the earn income,  i don't know what to mark on mine, and i can't claim head of household either.  

[rjs]

No, you did not have 7 months. You had half of 7 months (roughly). You are supposed to be keeping track of the actual nights. Keep a calendar and mark each night that your son stays with you. Half of 7 months, plus every other weekend for 5 months, gives you somewhere around 150 nights. So his father still has more nights than you by a comfortable margin. In TurboTax select 5 months.

[Anonymous]

Ok, thank you. So the dad would put 7 months, will 5 months qualify me to claim him as a dependent

[rjs]

It will allow you to claim him as a dependent as long as you answer the other questions the way macuser_22 told you to above.

“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement, and
"yes” I am claiming this year.

[Anonymous]

My ex was told to put 12 months,so should i tell him to put 7 instead?