My husband is incarcerated, how do I file our taxes?

[Drg45]

Also, does that change anything for the child care credit, would he still be able to do so? Questioning, because I am the step mother. 

[NCperson · Accepted solution]

@Drg45 

If I understand correctly, he has a daughter and since you two are now married, that daughter is your step-daughter, right?  

when you state '50/50' custody of the daughter.  If you have 50%, who has the other 50%.? and it can't be EXACTLY 50/50!  Which parent (you or the bio-Mom) will the daughter spend 183 or more days with? Let's start there. 

The person who cares for the child at least 183 days of the year is the custodial parent and controls claiming the child.  That parent can allow the non-custodial parent to claim the child tax credit by completing and providing form 8332.

The expression "our year to claim the child" is a misnoner.  The custodial parent ALWAYS claims the child.  But they can permit the other parent to claim the CHILD TAX CREDIT by completing form 8332.  The custodial parent can not pass the benefit of EITC to the non-custodial parent, nor can the non-custodial parent file HOH based on this child. 

this app will help determine who can claim her.   Go through it twice: a) answer the questions for your self.  and then b) play the role of whomever has the other 50%. (the daughter's bio mother?????)

https://www.irs.gov/help/ita/whom-may-i-claim-as-a-dependent

[Drg45]

@NCperson 

Yes she is my step daughter. I apologize on using the incorrect terminology, this is all very new to me. The biological mother and my husband alternate years for the child tax credit. We are just trying to get an idea on what are we even allowed for filing this year, with so many differences. I'm assuming that my step daughters mother will be claiming the child tax again, because my husband wouldn't be allowed to, due to being incarcerated. If that's the case, okay. But then how do he and I go about filing? Separate or together?

[NCperson]

@Drg45 you have the option to either file Married- Filing Joint or Married - Filing Separate.  Normally filing Joint is the better outcome, esp. when one is working and one is not.  96% of married couples file Joint.  The fact that your spouse is incarcerated doesn't preclude you from filing Joint (he does have to sign the return, though).

Since the bio-Mom is the custodial parent, you can only claim the child tax credit if she provides you with form 8332.  the fact that bio-dad is incarerated doesn't matter.  what matters is whether Bio-Mom gives you form 8332. 

https://www.irs.gov/forms-pubs/about-form-8332#:~:text=More%20In%20Forms%20and%20Instructions&text=I....

[Opus 17]

A married couple can always file a joint return, even if one spouse does not work, or is even if they are incarcerated.  As long as your spouse agrees, you can electronically sign for both of you and e-file. If you are filing by mail, you will have to take a printed copy of the tax return to your husband and have him sign it.

A step parent has the same legal position with respect to a child as a biological parent. So, the ability to claim the child as a dependent in this case, depends entirely on where the child lives more than half the nights of the year. If that is with you or your husband, or both of you, then you automatically can claim the child. If the child spends more than half the nights of the year with the other parent, then you can’t claim the child, even if it is “your year“, unless the other parent gives you a signed release form. If they don’t give you a signed release form, you may be able to complain to the family court that issued the custody order, but the IRS  will not honor the custody order without the signed form 8332. Since 2023 is not a leap year, it is not possible for the child to live exactly half the nights of the year with each family. Someone must have custody 183 or more nights, and the other family must have custody 182 nights or less. You may need to keep a diary and count the exact number of nights.