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Head of Household - Claiming dependents - Divorce Decree

My Daughter is 19 and lived with me 8 months of the year, went to school full time, and made less than $3700.  I was the primary support for her.  Question can I claim Head of Household and her as a dependent?  The divorce decree lists my EX as the person who can claim our daughter, although since she is now over 18 how does that work?

Also the divorce decree lists my 16 year old son the dependent for me and I have been claiming him.  In 2010 I claimed him with Head of household.  I received an assessment last year indicated I can not claim him because he did not live with me more than half the year.  I paid the assessment and want to make sure this year is correct.  My Ex and I want to work this out best, although if the decree indicates I claim my son do I have to?  Understand he would not fall under the HOH status.   If i claim HOH for my daughter because i meet the criteria would i be flagged again if i claim him?  Clear as Mudd?

    Let me start with a couple of canned answers that address your situation:

    To file as head of household, you must not be married or if married, you and your spouse must have lived apart during the last 6 months of the year. If married but living apart, you must file a separate return from your spouse. You must pay more than half the costs of keeping up your home occupied more than half the year by your child, stepchild, or foster child whom you claim as a dependent. If you are not married, you must have paid more than half of the household costs of keeping up your home lived in for more than half of the year by your qualifying child, married child, parent, or other relative.

    For divorced or separated parents, the custodial parent who the child lived with for more than half the year, can claim head of household filing status, child care expense credit, and earned income credit. The non-custodial parent, if allowed by divorce decree or consent of the custodial parent, can claim the dependency exemption and child tax credit. The child tax benefits cannot be split any other way.

    For your situation specifically, the IRS really doesn't care what your divorce decree says so long as the two parents agree on what to do. You can claim your daughter as a qualifying child dependent because she is a full time student under age 24, lived with you more than half the year and likely could not have provided more than half her own support with less than $3700 of income. If the non-custodial parent (who the child lived with less than half the year) claims the dependency exemption, that parent should include a form 8332 or similar statement signed by the custodial parent with their tax return showing that the custodial parent released the exemption.

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