Can I claim head of household if my husband is claiming our child as his dependent? We are married filing separately as the divorce is not yet finalized.

[sarah9]

If that is possible, how do we file when head of household requires the child life with you more than 50 % and the same applies to claiming a dependent. We can't both have the cold more than 50%.

[Coleen3 · Accepted solution]

For IRS purposes, one of you has to have had the child reside with you over 50% of the time. The custodial parent can be head of household and can release the claim of exemption to the noncustodial parent. These rules are only available to divorced or separated parents. You must have lived apart the last 6 months of the year.

Custodial parent and noncustodial parent.   The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.

  If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year.

  A child is treated as living with a parent for a night if the child sleeps:

• At that parent's home, whether or not the parent is present, or
• In the company of the parent, when the child doesn’t sleep at a parent's home (for example, the parent and child are on vacation together).

Equal number of nights.   If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income.

December 31.   The night of December 31 is treated as part of the year in which it begins. For example, the night of December 31, 2018, is treated as part of 2018

[sarah9]

Thank you so even though I am claiming to be the custodial parent, he can still claim the child as his dependent with her living with him less than 50% of the year? I just have to state that I'm my return that we have that agreement? Will the software allow him to do that? He's also using TurboTax.

[Coleen3]

Yes. You can claim HOH and give him the dependency. You will need Form 8332. When you go thorough the Personal Info section, you will see the questions that lead you to the form.
The screens can be tricky. Basically, if the question applies to residence, it pertains to Head of Household. You have to indicate that you are allowing the other parent to claim the exemption.
Dependency Questions:
What's Megan's relationship to you?
We know Megan is_, but we have to ask: Did she pay for most of her living expenses?
Do you have an agreement with Megan's other parent about who can claim her?
Is Megan's other parent claiming Megan per your legal agreement?
Are you letting Megan's other parent claim Megan for 2018?

Head of Household Questions:
What's Megan's relationship to you?
How many months did Megan live with you in 2018?
Where did Megan spend the most nights in 2018?
Did a relative live in your home and help support Megan?

[Hal_Al]

 There is a special rule in the case of divorced & separated (including never married) parents, that allows the non custodial parent to claim a qualifying child dependent, even though the child didn't live with him for more than half the year.
 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: <a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170897">https://www.irs.gov/publications/...>
Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[sarah9]

Perfect, thanks so much

[Coleen3]

My pleasure!