Our divorce decree states 50/50 custody and alternating years of claiming children on taxes. Do we both get to file head of household every year? How?

[serenareneedavis]

Our divorce decree states that we will have 50/50 custody but the children will live with me. It also states we will alternate years (even and odd) for claiming the children on the taxes. On even years when I claim the children, can I claim HOH, EIC, Childcare Expense, and Child Tax Credit? On the even years when my ex isn't eligible to claim the children, would he still be able to claim HOH being that we have 50/50 custody of the children? And how?

[mitch-rhodes]

Turbo Tax appears to force me to claim that my dependent is with me 183 days or more.  That doesn't seem correct if I'm not claiming him this year

[Hal_Al]

if you're having problems with the interview and don't plan to claim the child, for ANY tax benefits, just delete the dependent. The interview is complicated to accommodate the special rules for divorced and separated parents. If you live with the other parent, definitely delete the child. The special rules do NOT apply to parents living together.

If the child lived with you, as a separated parent,  for more than half the year, you can still claim Head of Household, Dependent Care Credit, and EIC, even though the other parent is claiming the dependent and child tax credit. But to do so, you need to answer that he lived with you for 7 months or more. The interview will ask if you are letting the other parent claim him as a dependent.

[Opus 17 · Accepted solution]

Your situation is covered in IRS publications 501 and 504, which you should definitely read.

http://www.irs.gov/pub/irs-pdf/p501.pdf

http://www.irs.gov/pub/irs-pdf/p504.pdf

Briefly, there are 5 tax benefits of having a child dependent: Dependent exemption, child tax credit, dependent care credit, head of household, and eligible for EIC. The tax code assigns all 5 benefits to the parent who has custody more than half the time.  Custody is defined as where the child sleeps at night.  (If the child is on a sleep over of a camping trip etc, the day is counted toward the parent where the child would have slept if not for the event in question.)

So for the IRS there is no 50% custody, you have to count nights, and one parent will almost always have more than the other.  If for some reason the # of days is exactly equal (like in a leap year, 366 days, exactly 183 nights for each parent) then the tax benefits are assigned to the parent with the higher income.

If the divorce decree says that the non-custodial parent (parent with less than 50% time) gets the dependents in a certain year, the custodial parent must fill out and sign a copy of form 8332 and give it to the other parent, this releases the tax benefits to the other parent.  However, the form 8332 only transfers the dependent exemption and the child tax credit.  Eligibility for Head of Household, Dependent Care Credit, and EIC always stays with the custodial parent and can not be transferred.  The only way to transfer all 5 tax benefits from one parent to the other parent is to arrange the children's sleeping schedules so that the desired parent qualifies for the particular year.

If you are the custodial parent, then in the years when you give your ex the form 8332 allowing him or her to claim the dependent exemption and child tax credit, you can still qualify for EIC, Head of Household and the Dependent Care benefit.  You do this by carefully answering the questions in the dependent interview in turbotax by saying yes you have a dependent, and yes you are signing a form 8332 to allow the ex to claim the exemption.  Turbotax will assign a special status to your children of "Non-dependent, use for HOH and EIC".

[allenchrisman76]

Does this mean that irs rules trump district court judge rulings? I'm the custodial parent and my ex wife lives in a different state. She see our daughter 9 weeks a year yet the judge ruled she could claim her every other year because she pays child support.

[bwa]

It means the IRS doesn't follow court rulings on custody.  However, you most likely would want to because you could be held in contempt if you don/t.

[au_smith]

With 2018 Turbo Tax filing under new guidelines, how do I maintain my Head of Household status based on being the custodial parent while relinquishing dependent exemption ($0 this year?) and child tax credit?  2018 Turbo Tax software not ask if I had signed 8332.   I am custodial parent, but my ex claims exemption every other year.

[bwa]

Do we both get to file head of household every year?

As Opus notes, you cannot, as you both cannot have the children more than 1/2 of the year.

If, as you note, "the children will live with me", that means you would be the only one who could be eligible for HOH every year.

[Opus 17]

For some divorced couples, if they were in good communication and willing to cooperate, it would be possible to alter the children's sleeping schedules so that a different parent could claim HOH with 183+ nights in different years.  Or, if the couple has two children, they can arrange the sleeping schedules so that one parent has child A 183+ nights, and the other parent has child B 183+ nights, and then both could claim 1 dependent and HOH.  I didn't go into that detail in my answer because you indicated the children would live with you.

[meluckeycharms66]

What if it’s 50/50 and the mother has not worked all year and told her boyfriend to claim my daughter. She has stayed more nights with me actually a month extra.  Her mother won’t sign the 8332 so I can get it instead her boyfriend did and I was told he can’t do that unless there married. I know divorce says it’s her turn but she didn’t work and that’s not his daughter there not married 

[macuser_22]

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@meluckeycharms66 wrote:

What if it’s 50/50 and the mother has not worked all year and told her boyfriend to claim my daughter. She has stayed more nights with me actually a month extra.  Her mother won’t sign the 8332 so I can get it instead her boyfriend did and I was told he can’t do that unless there married. I know divorce says it’s her turn but she didn’t work and that’s not his daughter there not married 

---

The BF cannot legally claim the child unless the child physically lived with him the entire (365 day) year and he provided more then half the child's total support.

If the child lived with you more then half the year (more then 183 nights) then ONLY you can claim the child. 

If a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will reject since the child's SSN has already been used (either intentionally or in error such as a mistyped SSN).

Your only recourse is to file a correct tax return, claiming what you are entitled to claim, then print and mail the return.

The IRS will process both returns and pay any refunds. Shortly (within a year) the IRS will mail letters to both taxpayers asking if their tax return was filed in error and suggesting that they amend if they improperly claimed the child.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to claim the dependent, such as proof that the child physically lived with them more than half the year. School records, child care records, household receipts, medical bills, etc., that show that the child lives with you should be retained.

The IRS will evaluate each taxpayers claim and award the dependent to one taxpayer, the other will have to payback any refund received plus interest and possible penalties. The parent that had physical custody usually always wins.

Do not ignore the letters or you will loose.

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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

[Critter]

1) Since the child did not live with the BF every night of the year then the BF cannot claim the child PERIOD.

2) if YOU are the custodial parent according to the IRS rules (read the prior thread) then YOU do not need any form 8332 ... YOU have all the rights to claim the child for ALL child related benefits ... what the divorce decree says means nothing in this case since the family court is trumped by FEDERAL tax laws.  In fact, you as the custodial parent should release the child to her using a form 8332 but as you say she has no need since she has no reason to file and the BF cannot use the 8332 at all.   If she wanted to fight this she would have to take you back to family court and any judge would toss out this frivolous claim.

3) if he does try to claim the child then he will lose when the IRS questions it since you also will claim the child ... if you get rejected then paper file the return ... YOU are in the right.