can one parent use a child for EIC and the other parent use that same child for a dependent

we are divorced and the mother stated I could claim our child as a dependent but she claimed her for the EIC. I didn't think that was allowed to do and my ex is good for trying to get me in trouble with the irs.
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    Yes, all perfectly legal, and in actuality, she is doing you a favor, not trying to get you in trouble.

    There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent (exemption), child tax credit& education credits; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons.

    The non-custodial parent can never claim the EIC, even if the custodial parent is not eligible for EIC
    • Hal_Al, I agree that she is helping me but she has hurt me by saying I could do this a few years ago and then she claimed them and didn't tell me and I had to pay the IRS back every penny plus interest. So I needed to make sure she was not trying to pull a fast one again. She is doing it so she gets it for the past owed child support that I am in arrears on. Thank you everyone for your help and I feel much better now.
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    If the child lives with the mother it's the mother who claims her for EIC and child care credit but she can let you claim er for an exemption, Child Tax Credit, and Additional Child tax credit.  You will have to send the IRS a copy of Form 8332 or equivalent in which she gives you the right to claim the child.  You need to send a copy every year.
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      Yes you can. 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.

      However, your wife must give you a signed form 8332 Release of Claim to Exemption or similar statement to file with your return if your divorce was post 2008. If the divorce was earlier, you must attach certain pages from your divorce decree.
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        Reminder:  your ex must give you a signed form 8332, Release of Claim to Exemption, to file with your return
        • In response to some of the answers: the judge ruled in my case that I will have physical custody, but 3 out of every 4years my ex will get to claim my daughter on his taxes. Does this mean that I still get the EIC and child care credit even though he claims her or does the judges orders give him rights to all of the credits as well as claiming her?
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        They recently changed the law.  If you are the custodial parent and he is claiming one child he must mail in paperwork every year.  Either 8332 or, for pre 2009 divorces, three pages or so from the divorce.  If he is telling TurboTax that the child resided with him zero months it would tell him that and print the transmittal form.

        If he told it 12 months then his filing would conflict with what you said on Schedule EIC and you are both likely to get a letter.  Just because you haven't doesn't mean you won't.
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          Bnmcintosh85,
          Even though the judge ruled in your case that you will have physical custody, you still need to have actual physical custody, for more than half the year, for tax purposes. But, I assume that was the purpose of the order to give you actual physical custody.
          So, the answer to your question is yes, you still get the EIC and child care credit, in the years that the ex gets the dependent & Child tax credit. The judge cannot award him the EIC and child care credit, or Head of Household, in violation of IRS rules.

          But that doesn't mean that he understands that and won't try to claim those things anyway and create a hassle for both of you.
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            Your ex-wife is right.  You cannot claim the EIC... This is what the IRS has to say... http://www.irs.gov/pub/irs-pdf/p4449.pdf
            • My ex-husband I have the same kind of arrangement.  I claim child care deductions and EIC but I allow him to claim one of them.  We have never filled out a form for it and never had it be a problem in our three years filing since our divorce.  I thought you only needed the form as evidence in case one parent tried to claim the child despite the agreement.
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            From what I understand, through my divorce decree, we each claim the child as a dependent but only one gets the child tax credit per year (we swap years), but I still claim the EIC which I can claim whether or not I claim the child tax credit because I am the custodial parent.

            If the child lives with you for at least half the year then I believe it is the person who has the highest AGI that gets to use the credit IF there is no form/judgement, etc. But we were divorced prior to 2009, so that may have changed.

            I also believe that whatever parent is the custodial parent is the one who gets to claim the EIC and even if they do not qualify for it, the non-custodial parent still can not claim it.
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              The child tax credit ALWAYS goes with the exemption.  If the decree says otherwise it doesn't matter.

              The EIC goes to the custodial parent, as you said.  Also the child care credit, should the subject arise.
              • OK our situation... My son has 50/50 parental responsibility and decision making of his daughter.  Last year he claimed her on his taxes per their agreement (they were never married and it's in the court  papers thy trade off each year) In oct 2010, his child's mother sent daughter to her daddy, my son to live for the rest of school year, while she supposedly got her self straighten up from trouble she had been in. the child did not return to her mother until  August 2011 against my son's wishes (in the middle of a full custody battle right now) in Oct 2011 the mother of child went to jail and turned temp custody over to grandmother, again against my son's wishes.  This is the year that the childs mother is to claim her on her taxes.  she is out of jail now, and told my son he could NOT claim her as she was going to.  She had 0 earned income in 2011.  My son and his new wife have a little boy togeather, and they qualify for the EIC with just him.  He asked his ex if he could claim his daughter anyway, she said no, that her mother, the child's grandmother had claimed them both on her taxes already.  My son is totoally mad, he never ever agreed to anyone else claiming her.  Can he still claim her for the EIC even though according to the papers she gets the dependant deduction.  we are positive that the grandparents income is way over the limit for the EIC anyway.
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              Actually, strange though it may seem, it probably depends on when those court papers were finalized.  If it was after 1/1/2009, then from the IRS perspective it is all on which parent had him with them the most nights in 2011.  If that is the case, as I understand what you said, he has the right to claim for 2011.  If the GP has alreeady claimed, he will have to file a paper return and wait for a letter from an IRS auditor.

              The above comment pertains to the exemptions.  I think it's clear that the child counts for EIC for ou, since that depends on residency.
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                RkyMtnAngel,
                No, he cannot claim EIC while the Grandparent (GP) claims the dependent. Splitting the tax benefits of a single child is not allowed by anyone other than the two parents (see the "special rule" above.). But, since he was the custodial parent for 2011 he can claim the child for all benefits for 2011. As BobB7 points out, he''ll have to file a paper return. The IRS will process his return and send him his refund.  Shortly (up to a year) thereafter, the IRS will correspond with both of them to determine which should be allowed the exemption. One sure way to lose the exemption is to ignore the IRS correspondence when received - make sure you respond timely. Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest. The custodial parent almost always wins.

                The mother cannot "give" her tax rights to the GP (she could if the mother was the custodial parent, but not in the situation as you describe) . The court agreement is irrelevant, to the IRS, since the mother is not the one claiming the child (it would also be irrelevant if it was post 2008, as BobB7 points out). That doesn't mean that the mother won't try to take your son to court, but it's unlikely.
                • Well,having read Hal's comment about the EIC, I'll stick with mine (although we agree it will be up to the IRS auditor if it comes don to that)  in my view, the "divorced and separated parenta" thing gives her the right to give away dependency (and CTC) but not EIC (or CDCC or HoH)
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                Why would he have to file a paper return.  and we do not even understand why the grandmother thinks' it's ok to use his daughter for a deduction, other then she had her for like 3 months, and that was not completely legal anyway accourding ot our lawyer as his ex signed her over to her grandmother for teh 3 months in the middle of a custody case and did it without telling anyone until it had already be accepted by the court, whome is under review for letting it go through as well.
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                  RkyMtnAngel,

                  Why would he have to file a paper return.?
                  ANS. Once the grandparent's e-file has been accepted, the IRS computers will reject any other e-file claiming the same dependent's SSN
                  and we do not even understand why the grandmother thinks' it's ok to use his daughter for a deduction,
                  ANS Because they don't know the rules and think their interpretation of how it works is correct.
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