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Form 8332 & 8453- am I right?

My ex and I have one daughter. We were never married. I'm legally the custodial parent. This year I am allowing him to claim our daughter. From what I understand, I need to file forms 8332 and 8453 (as does he). In filing these forms, he will be allowed to claim her for this year and get the $1,000 child tax credit, but since I am legally the custodial parent, I claim the EIC and my daughter will be listed as Nondependent - for EIC/dependent care only on my TurboTax forms. Can anyone confirm if I have this correct?
  • What is the age limit to file
  • A child of a taxpayer can still be a “Qualifying Child” (QC) dependent, regardless of his/her income, if:
    1. He is under age 19, or under 24 if a full time student for at least 5 months of the year, or is totally & permanently disabled
    2. He did not provide more than 1/2 his own support
    3. He lived with the parent (or was away at school) for more than half the year
  • Me & the Father of our child have lived together since our child was born n 2009.  We're not married, however I've allowed the Father to claim our son since he's been born thinking that he would get the most tax benefit.  This time around, I the Mother will claim our child, however is it required for the Father to sign the form 8332 by law, or is it just to serve as proof regardless of any verbal agreement?

    2nd, who would have the most tax benefit between us if he made more income than me the Mother?

    Lastly, is it ok to continue to switch who claims our child moving forward as long as we're together?
  • 1. Since you live together, form 8332 is not required. He is the qualifying child of both of you and you are allowed to decide between you who will claim him. If you can't agree, there are IRS "tie breaker" rules.
    2. The Earned income credit works on a bell curve, so it would take exact numbers to answer your 2nd question. Even then, the best thing to do is prepare your tax both ways and compare to be sure. This is easier & cheaper to do with the down load version of Turbotax, rather than on-line. You can do an unlimited number of returns for one price.
    3. Yes
  • still need help
You don't file forms 8332 and 8453, but he does.
 You give him the signed form 8332 so he can file it.
Yes, he will be allowed to claim her for this year and get the $1,000 child tax credit. You claim the EIC, because you are the physical custodial parent (the one that has the child the most nights during the year).
You also get to claim the daycare credit and head of household, if otherwise appropriate 
  • Thanks for your help, Hal_Al. I have a follow up question to this now. Apparently, my ex went ahead and filed his taxes. He took my allowing him to claim her as him saying he's the custodial parent. So he filed as custodial parent. I went to file my taxes and listed her as Nondependent - for EIC/dependent care only, but it's being rejected. I'm guessing this is because he claimed he was custodial. He has agreed to send in the 8332 and 8453, but I don't see him doing an amendment to his tax return. Is he going to need to do the amendment? Or will the federal gov't step in once they see the 8332 form filed with his return?
  • He needs to file an amended return. If he doesn't and you still want to claim EIC, read on.

    If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.
    Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins.

     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; 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 tax benefits may not be split in any other manner.

    Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child.
  • So...If i am in the same circumstances...but have paid for efile Fed/state, through Turbo tax, do i get my efile Turbo Taxes $$ refunded?
  • For refunds from TurboTax see https://turbotax.intuit.com/support/contact/
Ok I have my child all year round and he lives with me and his dad don't do I have to fill this form out because his dad dont claim him because I'm the one who take care of everything for my son  and neither one of us have custody of him and we are not married
  • "He lives with me and his dad" means you do NOT have to fill out the form.

    "I have my child all year round and he lives with me" and  "neither one of us have custody of him" appear to be contradictory statements. "Legal custody" does not matter for tax purposes; physical custody does
  • my son's father claimed our son on his taxes and told me later that he filed. i did not sign any form allowing him to do so. is that legal? apparently he must have stated head of household and the eic to get the largest return.  he has the order to pay for child support and im the custodial parent. im assuming he used our son's social number to complete this. but he thinks nothing should happen.
  • If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.
    Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.
Hal_Al similar questions

My fiance and I live together and just had a child in June, I have a higher AGI so I am considered custodial parent however she would qualify for EIC if she claimed her. Upon checking the box stating I have form 8332 and entering our daughters info, Turbotax recommended I file as head of household as I covered half the expenses even though I'm not claiming her.  From the sounds of it upon further review it looks like I may have to amend my return . 

Can I claim head of household if I released the right to claim my dependent to the non custodial parent but still cover the majority of the cost of the household?

I came to that initial conclusion through this information (bold identifies our situation):
You can claim the Head of Household filing status on your tax return if you are
unmarried, have cared for a dependent for over half the year, and paid more than half the cost of maintaining a home.

Taxpayers claiming the Head of Household filing status benefit from a higher standard deduction and lower tax rates compared to the single filing status. The definition of head of household is quite specific, so read over the criteria carefully.

  • You are unmarried or considered unmarried on the last day of the year.
  • You paid more than half the cost of keeping up a home for the year.
  • A qualifying person lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the "qualifying person" is your dependent parent, he or she does not have to live with you.
From the Head of Household section of IRS Publication 501. "Considered Unmarried" You are "considered unmarried" for the purpose of qualifying for head of household status if on the last of the year you are:
  • unmarried,
  • legally separated from your spouse under a divorce or separate maintenance decree, or
  • married but lived apart from your spouse for at least the last six months of the year.
State law governs whether you are married or legally separated under a divorce or separate maintenance decree. For federal tax purposes, domestic partners are considered unmarried.

"Qualifying Person" To qualify for the head of household filing status, a qualifying person needs to live with you in your home for more than half the year. The rules for qualifying persons for head of household are different than the rules for dependents. Only certain types of relatives can be qualifying persons for HOH as follows:
  • Child, step child, adopted child, foster child, brother or sister, or a descendant of one of these whom you can claim as a dependent under the qualifying children rules;
  • Child, step child, adopted child, foster child, brother or sister, or a descendant of one of these whom you would be able to claim as a dependent under the qualifying children rules but choose not to claim as a dependent because you released the dependent's exemption to the noncustodial parent;
  • Mother or father who can be claimed as a dependent under the qualifying relative rules;
  • Brother, sister, grandparent, niece, or nephew whom you can claim as a dependent under the qualifying relative rules.
Note that under the qualifying relative rules, some dependents do not need to live with the taxpayer all year. That is, there is no residency requirement for children, grandchildren, siblings, and parents. However, for head of household purposes the person must live with you for more than half the year. So it is possible that a person could be your dependent but still not qualify you for the Head of Household filing status.


However

Form 501 states:
Although the child is a qualifying child of each of these persons, only one person can actually treat the child as a qualifying child to take all of the following tax benefits (provided the person is eligible for each benefit).
  1. The exemption for the child.

  2. The child tax credit.

  3. Head of household filing status.

  4. The credit for child and dependent care expenses.

  5. The exclusion from income for dependent care benefits.

  6. The earned income credit.

The other person cannot take any of these benefits based on this qualifying child. In other words, you and the other person cannot agree to divide these tax benefits between you. The other person cannot take any of these benefits for a child unless he or she has a different qualifying child.


Was hoping to file her taxes today when I came across this info and now I'm confused again

  • The higher AGI rule is only a "tie-breaker" rule, if the two parents can't agree on who will claim her . As it is, you are allowed to decide between you. Your fiancée can claim her for the EIC OR you can claim her for Head of Household. You cannot do both.

    "Can I claim head of household if I released the right to claim my dependent to the non custodial parent but still cover the majority of the cost of the household?"  NO. You do not have a custodial/non-custodial situation. The child can only be claimed once. No form 8332 is needed. You just decide which one of you will claim her.

    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; 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 ALLOWED TO PARENTS WHO LIVED TOGETHER AT ANY TIME DURING THE LAST 6 MONTHS OF THE YEAR.
  • Ok so now that I screwed up and e-filed ass head of household how can I fix this so that she can get the EIC?  Is neither of us allowed to claim head of household if I covered the majority of expenses and she is claiming the exemption?
  • Correct. You cannot claim HoH because you do not have a qualifying dependent. She cannot claim HoH because she did not pay the majority of expenses.
    You have to file an amended return, unclaiming the child. You should wait until you first return is processed to do so.
    Your fiancée does not need to wait until your amended return is processed (but should wait until it is sent). But, she will not be able to e-file. She'll have to mail in her return.
  • Will I need to amend my VA State Tax return?
  • I'm not from VA (actually I am from Norfolk, many years ago) so I don't VA requirements. But if there was a change in filing status or number of exemptions, most likely you do need to file an amended return.
  • So when filing my fiance's taxes...they ask "Has the dependents other parent waived their legal right to you so you can claim her as a dependent on your return this year?"  If I have not filled in the form 8332 but am allowing her to claim her that is sufficient? I guess all this got confused when Turbotax told me I had to fill out form 8332 without mentioning the living together in the past 6 months clause
  • That's because you've answered (on her return) one of the questions wrong, indicating, to Turbotax, that she is the non-custodial parent. She is tecnnically neither the custodial nor non-custodial parent, she is just the parent. But, because she indicates that she is not married, she has to answer the interview questions as  the custodial parent.
  • Ok, so technically I did not answer it wrong (she did not have a higher AGI than me), but the Turbotax algorithm then defines her as the non-custodial parent, hence asking for the waiver.  Well thanks for your help, unfortunate for me it royally messes up our timetable for getting our refund and limits my refund by close to $2000
how do i turn the form 8332 with my taxes if i am doing it electronectly i already got the form.
  • If you are the non-custodial parent and have received this form from the custodial parent you will follow the instructions on form 8453 for submitting these forms upon filing electronically.  Read the full instructions for form 8332 and they will lead you to form 8453 which explains how to submit.  If you are the custodial parent waiving the right to claim your child, you do not submit the forms.
I too seem to be in the same situation. When a parent has been given legal right to claim a child as a dependent, by a 2012 divorce decree - that does not mean they get to claim the child as having lived with them to also get the EIC? 

He gets to claim the dependent - but the child has not lived with him at all. Allowing his to claim the child does not give up my right/ability to claim the EIC correct?

Thanks for taking the time to answer.




  • That is Correct. This being the first year, he probably doesn't know that and thinks he's gonna get EIC. When TurboTax tells him he doesn't, he'll probably try to go back and see what he needs to change to get it. You should probably refer him to this site for reference.
     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; 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 tax benefits may not be split in any other manner.

    Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child.