I'm trying to determine if I can file head of household for 2024. Filed for divorce in Nov 2023, we are likely to finalize before 12/31/24, still living with wife & son

[neilwalker2024]

I pay for all bills and mortgage still.  Do we have to have lived in separate residences for 6 months of the year?  I checked the IRS website and it's not 100% clear

[Bsch4477]

To file as HIH you have to have not lived with your wife at any time during the last 6 months of the year. 

[Bsch4477]

• To file as HOH you have to have not lived with your wife at any time during the last 6 months of the year. 

[Mike9241]

you can use this IRS website to check. Carefully read the questions.

https://www.irs.gov/help/ita/what-is-my-filing-status 

but as @Bsch4477 pointed out you have to live apart for the last 6 months of 2023. if not, your choices are a joint return or married filing separately. As for who can claim your son if MFS either you both agree to who claims him or under IRS rules if you can't agree and he lived with both of you for the same amount of time during 2023 then the one with the highest adjusted gross income gets to claim him.   also realize than MFS will like cost more in taxes than a joint return because certain credits and deduction are eliminated or limited when MFS. 

[Mike9241]

for the 2024 tax year, assuming divorce is final, it's the custodial parent (CP) who is eligible to claim the child under the tax laws regardless of what may be agreed to in the divorce.  The CP is the one whom your son lived with for the most nights during 2024. The tax laws also say that the N(on)CP can claim the dependent if the CP furnishes the NCP with a signed form 8332. the NCP must include the signed form with their tax return or use form 8453 to submit it by mail if they want to e-file their return.

even with providing the NCP with the 8332, the CP still gets to claim 1) the child and dependent care credit, 2) the earned income credit, 3) head of household filing status. the NCP gets to claim the child tax credit and the additional child tax credit.

[Hal_Al · Accepted solution]

Q. Can I file head of household for 2024 if the divorce is finalized before  12/31/24 and I am still living with my (now ex) wife & son?

A. Yes, since you are (will be) legally not married.  There is an additional requirement that you have a "qualifying person".   If you claim your son as a dependent, he will be your qualifying person.

The discussion about who is the custodial parent is probably not relevant, in your case, as you both lived with the child all year.  Either parent (but not both) may claim the child as a dependent.  If you can't agree on who will  claim the child, then the rules are: first the parent the child lived with the most.  That appears to be equal, so the 2nd rule is the parent with the highest income.  For 2024, you do not need form 8332, since the child lived with you  for all, or most, of the year. 

[Bsch4477]

@Hal_Al is correct. Since you won’t be married for 2024 you can file as HOH assuming you have a qualifying child. The 6 months provision applies to parents who are still married. 

[aceensor]

To file HOH, you need to draw up a decree stating which tax years either of you claims dependents.  If you have more than one, maybe consider splitting them and you can both file as HOH.  In either case, the decree stating who gets to claim dependents and/or how many if they're to be split is a big factor in whether you can clsim HOH. 

[xmasbaby0]

@aceensor Where are you seeing that taxpayers can just draw up their own "decree" in order to file as HOH?    Are you trying to refer to a signed Form 8332?    That is a form that can be used for divorced or never married parents who share custody of a child.

The Form 8332 can't be e-filed. The non-custodial parent must have signed the form and then mail it to the IRS along with the transmittal Form 8453 within 3 business days from the date the return is accepted. The 1040 income tax return can still be e-filed.  On the 8453 you simply check the box Form 8332, Release/Revocation of Release of Claim to

Exemption for Child by Custodial Parent.

The forms should be mailed to:

Internal Revenue Service
Attn: Shipping and Receiving, 0254
Receipt and Control Branch
Austin, TX 73344-0254

Am I Head of Household?

https://ttlc.intuit.com/questions/1894553-do-i-qualify-for-head-of-household

https://ttlc.intuit.com/questions/2900097-what-is-a-qualifying-person-for-head-of-household

If you qualify as Head of Household, when you enter your marital status (single or married filing separately) into MyInfo, and then enter your qualifying dependent, TurboTax will offer HOH as your filing status.

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[Opus 17]

---

@Bsch4477 wrote:

To file as HIH you have to have not lived with your wife at any time during the last 6 months of the year. 

---

This is not correct.  If the taxpayer is legally divorced (i.e. single, "unmarried") as of 12/31/24, then it does not matter when the divorce occurred or their living arrangements before the divorce.  The requirement that the taxpayer must not have lived with their spouse only applies if they are still legally married on December 31. 

[Opus 17]

---

@aceensor wrote:

To file HOH, you need to draw up a decree stating which tax years either of you claims dependents.  If you have more than one, maybe consider splitting them and you can both file as HOH.  In either case, the decree stating who gets to claim dependents and/or how many if they're to be split is a big factor in whether you can clsim HOH. 

---

No.  This is incorrect on 2 levels.

First, HOH is only available to the parent where the child lived more than half the year.  HOH ignores all custody agreements and is only based on where the child actually physically lived.

Second, even if there is a custody agreement about how to claim the dependent in different years, this is not binding on the IRS.  The parent where the child lives more than half the year is always the only parent with the automatic right to claim the child as a dependent.  The custodial parent may choose to release the dependent to the non-custodial parent.  And if there is a court order and the custodial parent refuses to follow it, the non-custodial parent can complain to the family court, but the IRS is a federal agency controlled by federal law, and the IRS will not follow a custody order unless the custodial parent agrees.

[Opus 17]

@neilwalker2024 

If you are legally divorced as of 12/31/24, then you must:

a. pay more than half the costs of your household

b. provide care in that home for a qualifying person, usually a child dependent.

If you are still legally married then you must:

a. pay more than half the costs of your household

b. provide care in that home for a qualifying person, usually a child dependent.

c. live apart from your spouse for all of the second half of 2024

Having a qualified person is mandatory.  HOH does not just mean that you are boss of your home, it is a special status for single parents and people in similar situations. 

[rjs]

---

@aceensor wrote:

If you have more than one, maybe consider splitting them and you can both file as HOH.

---

This is also incorrect on a third level. Two people living in the same household cannot both file as head of household. One of the requirements for the head of household filing status is that you paid more than half the cost of keeping up the home for the year. You cannot both have paid more than half the cost. If one paid more than half, the other must have paid less than half. Only the one who paid more than half the cost can file as head of household, regardless of any other considerations.