Can I claim non-dependent EITC?2020 divorce agmnt states other parent can claim all kids as dependents this 1 tax year. The dependents are w/ me more than 50% of year.

[lillew9hoh]

I pay for my home and expenses. I'm custodial parent for IRS purposes correct?

[DawnC]

Yes, if you are the custodial parent (the children are with you for more than half the year), then you are eligible to claim the EIC.   When you go through the dependent section, you have to indicate that the other parent will claim them by giving them a signed 8332.    

The one with whom the child spent the most nights is the custodial parent and can claim the child as a dependent.  From what you posted that would be you. The IRS doesn’t care what your divorce arrangement is. The custodial parent can give the other parent a signed form 8332 to give the other parent the right to claim the dependency and child tax credit. The custodial parent retains the right to claim EIC and child care credit as well as file as head of household if otherwise qualified.  

[lillew9hoh]

You say "The one with whom the child spent the most nights is the custodial parent and can claim the child as a dependent". Do you mean to say "The one with whom the child spent the most nights is the custodial parent and can claim the Earned Income Credit?" The other spouse (whom has them less than 50% of year) is eligible to claim them as dependents. Can you breakdown what each spouse can claim as far as dependents, Child Tax Credit, EIC, Childcare Dep credits/expenses? Thank you.

[RayW7]

Usually, the custodial parent gets to claim any qualifying children as dependents.

However, the IRS doesn’t use the same definition of custodial parent that family court does. 

In certain cases, your divorce decree might say that one parent has custody, but the IRS determines that the other parent should be able to claim the child for taxes.

For tax purposes, the custodial parent is usually the parent the child lives with the most nights. If the child lived with each parent for an equal number of nights, the custodial parent is the parent with the higher adjusted gross income (AGI).

If you feel that you should be able to claim the dependent, you’ll need to print and mail your return. You won’t be able to e-file. The IRS won’t allow two different people to e-file using the same dependent Social Security number (SSN).

The IRS will then send a letter to both of you to determine who gets to claim the exemption for the child. If you can’t agree on who claims the child, the tie-breaker rules apply. Under the tie-breaker rules, the child is a qualifying child only for:

• Whoever the child lived with the longest during the tax year
• The parent with the highest AGI if the child lived with each parent for the same amount of time during the year
• The person with the highest AGI if no parent can claim the child as a qualifying child
• A person with an AGI higher than any parent if the parent can claim the child as a qualifying child but doesn’t

[lillew9hoh]

@RayW7  Thanks. Clarifying points: 1. Family court/legal is joint custody.  2. We are divorced and live separate. 3. Kids stay with me more than 50 % of year.  4. Other spouse has an ACCEPTED return  5. Mine rejected with SEIC F1040-506-02.  

[DawnC]

There is no such thing as joint custody in the tax world.  The custodial parent (you) can give the other parent a signed form 8332 (Dependent Release Form) to give the other parent the right to claim the dependency and child tax credit.   That is the only credit he can take as the noncustodial parent, even if you do give him the 8332.  

The custodial parent (you) retains the right to claim EIC and child care credit as well as file as head of household if otherwise qualified.   He has claimed the children, but did he also take the credits you were entitled to?   Depending on how he filed, you are probably going to have to file by mail.    

[lillew9hoh]

@dawn 

Without asking them yet, I believe they did claim the EIC, because I got a rejection on my return. It's their first time filing so I can see how the questions may have been confusing about this part of it. If they were mistaken in their filing and it's accepted (since they filed first)...will they need to amend first prior to me filing? And do I have to file by mail now?

[DawnC]

No, you can go ahead and file (by mail); you are not going to be able to e-file :(   He should do the amendment soon, but not immediately.   The 1040X is not even ready yet.  He will have to pay back the credit, but this is actually is a very common occurrence and is easy to correct.    At least you will both know for next year.  

[lillew9hoh]

@DawnC  Ok. So print out form 8832, fill it out and give to them, they amend their return (when 1040X is available), and then in the meantime I paper mail my return in. Do I have that right?

[DawnC]

Yes, he will need the 8332 to get his amendment filed correctly.   And you can paper-file whenever you are ready.