My husband gets to claim my stepchild every other year and there is no custodial parent as they have shared parenting. Do we need a form 8332?

[Texas Roger]

While the divorce decree may state shared custody, the IRS does not recognize 50/50 custody for tax purposes. Whoever the child actually lived with more than half the nights of the year is the parent who is the custodial parent by tax law. The custodial parent may then relinquish the dependency exemption to the non custodial parent with a signed form 8332 or similar document. 

Here is how the tax benefits are split. For divorced or separated parents or parents who live apart, the custodial parent, if eligible, or other eligible person who the child lived with for more than half the year, can claim head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, and the earned income credit. The non-custodial parent, if allowed by divorce decree or consent of the custodial parent on form 8332 or similar signed statement, can claim the dependency exemption and child tax credit. For post-2008 divorce decrees or agreements, form 8332 or similar signed statement is required. The child tax benefits cannot be split any other way.

[miller-brittney9]

What if nights are split. The child spent equal nights with both parents?

[Texas Roger]

If it was actually the same number of nights, neither parent could claim the child because the child would not have lived with either parent more than half the nights of the year. That can only happen every 4 years including 2016 since every year but leap year has an odd number of nights.

[miller-brittney9]

So having in the divorce decree that each parent shall alternate years that they can claim the child is not good enough?

[SweetieJean]

Not for the IRS. However, the Family Court can order the custodial parent to complete a Form 8332.

[macuser_22]

The IRS follows Federal tax law that only looks at the actual physical custody which must be *more* than half the tax year to determine custodial/noncustodial parent.   Local court orders cannot override Federal tax law, but they can compel that the parent where the child actually lived more than half the year, release the exemption to the other parent to comply with the divorce decree.   NOTE: that the EIC and child care credit can NEVER be claimed by the parent that the child did not live with more than half the year - those credits always stay with the parent where the child lived more than half the year.   

The other parent can only claim the child's exemption (dependent) and the child tax credit.

As stated above, if the child lived with both parents *exactly* the same number of nights, but not more than half the year, then the child cannot be claimed by anyone as a Qualifying Child under the special rules for divorced or separated parents that live apart.

For the full IRS rules see IRS Pub 17:
<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170891">https://www.irs.gov/pub...>

Look under Qualifying Child -> Residency Test -> Children of divorced or separated parents (or parents who live apart).   For all of the rules.

[TomD8]

If the child is not a "Qualifying Child" of either parent, he/she can still be claimed as a "Qualifying Relative," in which case the right to claim would go to whichever parent provided over half of the child's support.

[macuser_22]

That is correct, but the special rules to "split" the benefits would not apply and  the EIC or child care credit cannot be claimed if the child did not physically live with the parent that provided more than half of the child's total support for more than half the year.

[hooly]

So, the way I interpret all this:

My son and his ex girlfriend have joint 50/50 custody.

Despite if he has his son less that 183 days, ie 180 days, as long as she agrees to give him the rights to claim him as his dependent, he can claim head of household, and other child credits/exemptions.  He does make more money.

Is this in line with what you are saying 

[Texas Roger]

She can relinquish the dependency to him, but he cannot file as Head of Household because the child did not live with him more than half the year.  She can file as Head of Household if she otherwise meets the requirements by entering the child on her tax return and claiming him as a qualifying child. Here is how it works with divorced or separated parents:

For divorced or separated parents or parents who live apart, the custodial parent, if eligible, or other eligible person who the child lived with for more than half the year (183 nights in 2019), can claim head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, and the earned income credit. The non-custodial parent, if allowed by divorce decree or consent of the custodial parent on form 8332 or similar signed statement, can claim the dependency and child tax credit. For post-2008 divorce decrees or agreements, form 8332 or similar signed statement is required. The child tax benefits cannot be split any other way.

[macuser_22]

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@hooly wrote:

So, the way I interpret all this:

My son and his ex girlfriend have joint 50/50 custody.

Despite if he has his son less that 183 days, ie 180 days, as long as she agrees to give him the rights to claim him as his dependent, he can claim head of household, and other child credits/exemptions.  He does make more money.

Is this in line with what you are saying 

---

No.   If less  than 183 nights (not days), then that is less than half the year.  For anyone to claim a Qualifying Child dependent the child must physical live with the parent more than half the year.  365/2=182.5 so 183 nights in a non-leap year is more than half.  In a leap year it would be 184 nights or more.

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  in Pub 501

https://www.irs.gov/publications/p501#en_US_2018_publink1000220906

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

The non custodial parent can only claim: (Child would be listed as dependent)
- The child as a dependent
- The Child Tax Credit or credit for other dependents

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.