With 50/50 joint custody, could we each claim all 3 kids, stating they lived with us 6 months out of the year? Or do we have to split them, and alternate each year?

[julieannajones98]

Divorced, and first year filing separately, so unsure the best way to claim our children. Our 3 kids spend half their time with me and half with their dad - we share 50/50 physical and legal custody. Instead of one of us claiming 1 kid and the other claiming 2 kids, and alternating every year, could we each just claim all 3 kids, stating they lived with us 6 months out of the year? What would be drawbacks/benefits to doing it that way, if that's even possible?

[Bsch4477 · Accepted solution]

No.  You can't split the tax benefits.  If you truly have 50% shared custody and agree that is the situation and agree that it is fair to have one of you claim 2 kids one year and then the other claim 2 on alternate years, that would be the way to go.

[macuser_22]

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  under the residency test in Pub 17

https://www.irs.gov/publications/p17#en_US_2017_publink1000170899

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
-The Child Tax Credit

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

Note. If you are the non-custodial parent filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.