I have full physical custody of my daughter and have her 85 percent of the time. However, our divorce agreement states that we rotate claiming her every other year. My current lawyer states that should never have been put in that way but we can't change it now. It bothers me that my ex can never claim certain credits because he doesn't have her 50 percent of the time but when I don't claim her it doesn't let me claim them either. Can I just claim her every year?
The IRS will allow the dependent to the custodial parent no matter what the divorce agreement says. The agreement is a local legal document, and you could consider departing from it if you both agree and will not be going back to court over this.
This year, if the custodial parent is not claiming the dependent, they can claim the Child Care Credit, the Earned Income Credit, and the filing status Head of Household, but not the Child Tax Credit.
The noncustodial parent can only claim the Child Tax Credit in the year that he can claim the dependent, since there is no longer a personal exemption.
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I would caution to not ignore the divorce agreement. It is legally binding even though it is a local agreement. A local court can penalize you just as good as a federal court. You can both agree to amend it, but I don't see why your ex would give up something for nothing.
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