I have Joint Physical Custody of my child. For the year of 2017, I had my child 183 nights and my ex had my child 182 nights. He pays $70 in child support a month and health insurance so he believes he is the one to claim my daughter every year. He has claimed her since 2010. He has stated he will claim her again this year. I know if I claim my daughter, I will be audited as he is claiming her. Again, I had one more night than him. He pays some child support ($70 per month) and he has a high deductible health insurance for the child. Should I claim her or should I just let my ex claim the child?
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We can't tell you what you should do, but we can tell you the rules.
The custodial parent has the right to claim the child.
Custodial parent and noncustodial parent. The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.
If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year.
A child is treated as living with a parent for a night if the child sleeps:
Equal number of nights. If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI).
If you were the first to e-file, their return will reject. If someone else claimed your child when they shouldn't have, and if they file first, your return will be rejected. The only way to claim your child is to file a return on paper. The IRS will process your return and send you your refund. Usually within a few months, you'll receive a letter from the IRS, stating that your child was claimed on another return. If you made a mistake, 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, removing the child from their return, the IRS will require you to provide proof. There will be a list of possible ways you can do this. The more you can provide, the better your chances.
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 on the divorce decree.
For future negotiations with the other parent (and maybe even for this year) the following info may be of use:
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, even when the custodial parent has
released the exemption to him.
Ref:
http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897
"I will be audited as he is claiming her."
Yes, you will be and so will he. You will both be asked to prove that you had the child 183 nights.
If neither of you can prove it, the iRS will most likely award the dependent to the child with the highest income.
References:
https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030
http://taxes.about.com/od/dependents/qt/Dependents-Audits.htm
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