40 Comments on Split Exemption: Claiming One Child on Two Tax Returns — The Legal Way

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LAR on Sat, 28th Jan 2012 5:08 am


My son and the mother of his child are not married. He paid $3400.00 dollars in daycare expenses and wanted to give that to her as a deduction to help supplement support. According to the person doing her return, she won’t get anything back from the daycare expenses. It’s a nonrefundable credit that will bring tax liability down. Whatever that means. She is single and Head of Household. She get EIC and some assistance from the state. Why can’t she use the daycare expense? Also, I was reading what you said about page 31 on Pub. 17, so can my son claim the daycare expense to get something back to give to her while she still claims their son? If so, how do we do that?

Jan Roberg on Sat, 28th Jan 2012 5:13 pm


Hi LAR,

I see where that tax preparer is coming from–the Child Care Credit is only good for reducing any tax that is owed. If the tax is down to zero, there’s no more money given. (Unlike the EIC where even if your tax is zero, you still get money back.)

Your son can’t claim the child care credit because he is not the custodial parent. But–you may be able to work something out with the split exemption that might help. If they split the exemption, the mom signs an 8332 and lets your son claim the child tax credit and the exemption–she may have a little tax owed that the child care credit would reduce–then still be able to claim EIC etc.

This may work to their advantage–it may not. It sort of depends upon how the numbers work out. But it is worth a shot. But the bottomline, is only the custodial parent may claim the child care tax credit.

Del on Mon, 30th Jan 2012 4:03 pm


If i have 50/50 shared custody of my child (She lives with me 50% of the time and we split my child expenses 50% – day care, etc.) how can i claim my child or at least the 50% expenses i pay?

Admin Roberg on Tue, 31st Jan 2012 2:23 am


Hi Del,
You can’t really claim your expenses you pay on your child. If you and your ex really have a 50/50 arrangement, it might make sense for you two to work together to see what makes the most sense for you. Who get’s the bigger bang for the buck claiming your child? What about splitting the exemption?
I have a divorced couple that has 50/50 custody and they sit down together every year and figure it out. They put the extra money they save by working together into a college fund for their son. Granted–they are awesomely cool and will do whatever it takes for the greater good of their kid–but I think it could work for you too.
If your ex is not very agreeable, it will come down to who have your child more. If you truly are 50/50–then the exemption will go to who has the highest adjusted gross income (in English means who makes more money.)

Rey on Sat, 4th Feb 2012 10:39 am


hi.. what a great page of info! I have a scenario for you. My brother got custody of his three kids june 2011. He has lived with me since then and i was planning on claiming his kids as dependents until filing was rejected because his ex wife filed first. what should we do? File by mail including Form 8332 for the three kids? Plus costody papers and school papers for proof? We (my brother) have the right to claim for EIC and (I, myself) child tax credit for full year right? Thank you…

Admin Roberg on Sat, 4th Feb 2012 2:24 pm


Hey Rey,
I answered you question on the “My Ex Claimed my Kid” page.

David on Sat, 4th Feb 2012 8:58 pm


Hi, This is exactly what I was looking for with just one question on my mind. If my sons mom (who doesn’t work and is married) has already claimed my son this year before I file my tax’s will this not work? I have brought up sharing the money she gets back for my son and it’s been nothing, but ugly arguments. I would just like to avoid the arguments if it isn’t going to work this year.

Thank you,
David

Admin Roberg on Sun, 5th Feb 2012 2:22 am


Hi David,
I’m a little lost–I’m guessing that you want to split the exemption and that you’re the non-custodial parent. Right?
Next question– do you have any legal right to the split exemption (such as a divorce decree) or are you just thinking–this is a good idea for me?
You see the difference here. A legal right is one thing, a good idea for you is another. Of course, if you just think that it would be nice to split the exemption–but your ex doesn’t have to–of course she’s not going to agree to it and she’s certainly not going to give you any money back for your son. (That could be a really good explanation for the ugly arguments.)
But let’s say you have a legal right on your side—First, you’ll want to check this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
If the law is on your side, you may be able to persuade her to sing an 8332 form (or if you’re allowed, you can send the pages of your divorce decree.) If you’ve got the paperwork you need, you’ve got yourself the ability to file–even if your ex files first and claims your child.
If you don’t have a legal right–you’ve got nothing. There’s no incentive for your ex to release the exemption and no incentive for her to split any refund with you. Sorry.

Farron on Sun, 5th Feb 2012 9:13 pm


I had parenting time of my son for 4 months out of ther year and lived with him for 6 months and provided all of his support. His mother has been unemployed for 4 years but is claiming him on taxes somehow. Last year I had joint physical custody and provided over half of his support. Do I have the right to claim him as I am providing all his support and his mother is living off of the state?

Admin Roberg on Sun, 5th Feb 2012 10:24 pm


Hi Farron,
I’m sorry to sound dense, but I don’t know what you mean by “I had parenting time…” Bottom line–where does the child live? If he lives with you for over 6 months–you’re fine. If not–you can’t claim him.
If she has custody–she can sign the 8332 and let you claim the exemptioon and child tax credit–no EIC or head of household.

When I say, “where does he live?” I mean–where does the child go to sleep at night?

Scott on Mon, 6th Feb 2012 1:57 am


Hi, I’m doing taxes for my nephew. He is not married, but has a child and lives with the mother of that child. Can he file as head of household and claim the child as a dependent, while his significant other and mother of his child claims the child for the earned income credit? He made too much income to be able to claim the earned income credit himself.

Admin Roberg on Tue, 7th Feb 2012 2:12 am


Hi Scott,
Families that live together, even if they are not married, may not split an exemption. Because your nephew and his girlfriend are a family unit–and are working together on their family–the smart thing is for them to both sit down and do their taxes together. Once with him claiming their child and her not, and then the other way around. Compare their combined tax refund (or balance due) and file whichever way gives them the best combined return.

Emily on Thu, 9th Feb 2012 9:46 pm


My brother in law and his ex wife has 50/50 for both their kids. first week he gets them from sunday 8am to tuesday 8pm. then he gets them back on friday at 8pm to tuesday 8pm. she gets them from tuesday 8pm to sunday 8am for the 1st week then tuesday 8pm to friday 8pm. it is split right down the middle, from holidays he gets them on the eve of the holiday, for father’s day he gets them, for their birthdays, he gets them for a 12 hour period in the day. He also gets them on his birthday. She would not let him claim any thing for the kids even though its split in the middle. how does he go by claiming the kids, when she is lying about it on her taxes. can he claim them and see if it gets rejected? we know that she is on assistance from the state

Jan Roberg on Sat, 11th Feb 2012 5:14 pm


Hi Emily,
I’m having Michael answer your question today. He works for Roberg Tax Solutions and I need some help with the blog questions.

Michael Siebert on Sat, 11th Feb 2012 5:16 pm


Great question. The “custodial parent,” as defined by the IRS, is the parent with whom the child resides for the greater number of nights during the calendar year. Since the scenario you described states exactly 50/50 time spent between both parents, neither would be considered the custodial parent. The IRS created tie breakers rules specifically designed to decide who gets the dependency exemption for this situation. If the children lived with each parent for the same amount of time, the child will be treated as the qualifying child of the parent who had the higher AGI—or said more bluntly, the parent who generally makes more money will get to claim them. If your brother e-files with the kids claimed and his ex wife has already done so, your brother’s return will get rejected because of the social security numbers of the children will already be in use. He can get around this by mailing in his return so the computers can’t automatically deny his return. The fair idea in this case would be for each parent to claim one child. However, since that is not happening, he can paper file and go for both. He will have to be able to prove the kids live with him for half the year.

Mel on Sun, 12th Feb 2012 8:34 am


Hello,
My husband and I file married joint ,we are both previously divorced I claim my child who is 21 college age as she has no contact with her father & no support with exception of my own. My husband divorced in2005 his decree stipulates joint custody per joint parenting agreement,and pays child support for youngest son,pays 100% of medical ?dental bills & some schooling expences,activites etc..an has visitations as often as he wants & never late,per his decree it clearly state”both husband & wife agree that husband will take eldest & wife shall claim youngest on dependency exemption,child tax credits& Hope & lifetime in computation of federal & state as long as permitted by IRS & Illinois rev code.When husband can no longer claim the eldest & all credits,exemptions etc,the parties will alternate the youngest child”.In 2006 The ex wife filed claiming the eldest& youngest but somehow, we did get ours efiled notice & our refund & later got notice from IRS about the elsest child & had to submit divorce decree.That was resolved once I sent the forms ,we never had anymore issues at all. Currently the elsest now 18 & in college works part time,does not file taxes, lives with mother, we are currently also in court trying to determine college contribution ,however with her being 18 she gets the 1098T from college and we do not have them so we can no longer claim her, there fore I am sure the ex wife did for the college benefit, that said we filed our taxes according to the decree for youngest & were rejected because the ex ALSO claimed him with full knowledge of decree (they do not speak ) now we have to send paper copies along with copies of decree to IRS,My question is can I go to IRS facility & resolve this in person?and will this effect our refund amount?if so by what? My husband along with my income would be the higher AGI as his ex is still single /head of household.Also how long will it take if I mail it to get our refund?Our biggest problem is that this has happened in 2006 and now and apparently she has no repercussions as we follow the legal decree and the IRS.How long can this take,We would rather just let her claim the eldsest for college exemptions & swap for the 16 yr old until he goes to college and then possibly alternate but there is no communication & now we get flagged by IRS??HELP ! our tax prepare just said to get the paper file, sign ,send in decree & wait & see can take a while,the amount should not change? I cant sleep this just upsets me becasue we try to do right & there is no cooperation at all & the IRS we dont play with.. HELLLP!!! sniff snif sniff

Mel on Sun, 12th Feb 2012 8:45 am


I should also say that the childsupport paid was current until oldest turned legal age& modified for the youngest child last year who still receives c/s

Admin Roberg on Sun, 12th Feb 2012 8:53 pm


Hi Mel,
I hear you. And surprisingly, the IRS hears you too–I know that’s hard to believe but there are millions of divorced people out there. They all have a story. Every single story is important. But–the job of the IRS is to collect money for the government, period. That fact that your husband and his ex don’t communicate is not their problem.

I’m not saying that to me rude or mean. You just have to see their side of things. The whole issue of who gets to claim who boils down to a set of rules. You also have to eliminate all the excess garbage that doesn’t apply to your case.

Is there any relevance to your 21 year old daughter in this case? No.

Is the number of times your husband have visitation relevant? No.

It does tell me that your husband does not have custody so the best you’re looking at is a dependency exemption (no child tax credit when they’re in college) and the college tax credit.

Is what happened in 2006 relevant? No. Perhaps 2010 and maybe even 2009 yes, but 2006 was 5 years ago taxwise.

Is your income relevant to this case? No–income is only relevant if the chlld lived with both parents for an equal amount of time.

Your question–when you get to it, is can you go to the IRS and get it resolved in person? Please don’t do that. Why? Because, and I want to say this kindly but–you talk too much. Hear me out–I think you may have a legitimate claim–I’m not sure. You gave a lot of information, but not necessarily the right information. What you did give me was enough information to go “What?” You don’t want the IRS to say the same thing.

You have a paid tax preparer who is telling you to mail in your return. I think she understands your case better than I do and my gut says that she’s right.

Mel on Mon, 13th Feb 2012 10:56 pm


Thank you for your prompt response, I honestly & purposely put all the information in my letter due to reading previous questions thinking to be as detailed as possible.But other then that I have gotten my answer from the IRS in my local vicinity & they were very helpful & polite as you stated so my nerves are at ease now with some more clarification from our tax guy. Thank you for your time.

Admin Roberg on Tue, 14th Feb 2012 3:49 am


Hey Mel,
It is totally stressful when you’re going through this. And it is important to talk it out. It’s just not always good to talk it out in front of an IRS agent. I re-read my post and I thought I sounded awfully harsh. I’m sorry. I wasn’t meaning to sound harsh. I’m glad you’ve gotten what you need.

Stan on Sat, 18th Feb 2012 5:15 am


Quick follow up to Michael’s post on “true” 50/50 splits. Is the AGI calculated on the 1040 filing, or independent income? Example: one parent remaried, does the new spouse’s (step-parent’s) income count towards one side of the AGI calculation?

Maybe this is clearer:

Mom makes $1
Dad makes $2
Mom’s new husband makes $2 and files joint.

Who has the higher AGI?

nikki on Wed, 22nd Feb 2012 10:28 pm


I have a question, my ex claimed both of my kids this year, my son did stay with him for most of 2011, he stayed with me every other wed thur fri and saturday night and sometimes sunday, I told him that i was ok with him filing the EIC for him, he told me his cpa told him to have me write a note stating that my son lived with him and also my daughter so that he can claim child tax credit on her, (she did not stay with him except every other weekend) but he also has no legal documents that she is his! My problem is….the irs is holding his refund tellin him that he can not claim my son lived with him and he also can not claim that he is the father of my daughter, he was only supposed to claim CTC on her but I guess his cpa misunderstood, now I am ready to file my return but I know there is going to be an issue. I have told him to amend his taxes, if he does this can he claim my son as EIC with the letter I have provided and if I sign the form for him to file them as dependency will that affect my return?

nikki on Wed, 22nd Feb 2012 10:34 pm


he also tells me that if i file before he amends it, (because he is taking so long cuz he says he dont have money to pay someone to amend it) that I will end up in a lot of trouble. Reading some of your information I dont believe that, but he worked for his self and is going to have to pay taxes so he is fighting with the IRS to pass his taxes through…im totally lost on what to do, I am willing to let him claim my son as EIC because he did stay there but we didnt change address or anything there was no big reason for us to do that!

Admin Roberg on Fri, 24th Feb 2012 2:45 am


Hi Nikki,
It sounds to me like the CPA filed a form 8332 with your husband’s return instead of just having him claim your son. Then again–it’s possible that there could be a thrid party invovled as you haven’t file a return yet. I’m thinking you and your ex (it sounds like you have a decent enough relationship) should go together and sort through it all.
Question: is your ex the father of your daughter? If not–then you can’t allow him to claim her for the dependency exemption and the child tax credit. (Unless you were married–then he’d be her step-father and that would be okay.)
The other issue is–since your ex really is the father of your son, and your son really lives with him–why did the CPA have you write a note saying so? You don’t need a note to send with the return.
So–I’m thinking you two need a second opinion. Here’s a link to find free tax help: http://irs.treasury.gov/freetaxprep/
It’s worth looking into. Good luck. (Sorry I’m not much help, but I think you two need face to face help and someone looking at the paperwork to make sure you come out okay.)

nikki on Fri, 24th Feb 2012 9:35 pm


yes he is the father, he is just not on her bc and we never had any court orders, he is not on my sons either but we went to court over him! They are telling him that he cannot claim him because he cannot prove my son lived there, school, doctor, and insurance are all in my address. I have not signed a form 8332 so Im not sure what she did but she has it all messed up! He went to another cpa and she is going to try and file again on ethan but I am worried that if they still say no I will not be able to claim him again for the next 3 years.

Lorie on Sat, 25th Feb 2012 12:06 am


This really helped out, YOU’RE AWESOME!! Not many people make the time to comment back on the articles they write and I’m sure you’ve gotten hundreds, thanks aloooot!

Admin Roberg on Sat, 25th Feb 2012 10:26 pm


Hey Nikki–
Sorry I’ve been out of commission.
Okay, let me make sure I understand. Your ex is not on your son’s or your daughter’s birth certificate–but he is their father, right? Because if he really is the father then he does have some rights, especially if your son lives with him.
As far as you not being able to claim your children for three years–it sounds to me like you haven’t done anything wrong so I would not expect there to be any kind of IRS punishment.
Okay so the school, doctor, and address are all in your name–that’s going to be a little tougher on him–but you’re not fighting his claim so I’m not seeing why the IRS is pushing back on this.
Sorry, I know my answer sounds a bit disjointed–I’m just trying to process all the facts. I still think the big question is: “Why did the IRS say he can’t claim your son when you haven’t filed a tax return yet?” Here are possible answers:
1. Somebody else claimed your son on a tax return. Is that a possibility? If yes, does that person have any rights?
2. Did your ex ever have an EIC problem in the past where he’s been banned from claiming EIC? That’s one of those things that your ex would know if that happened. It’s not like the IRS bans you and doesn’t tell you about it.
Hopefully your new CPA can help you sort this all out.

If I were filing your returns, I’d put your ex as head of household, claiming your son for everything. I’d put you as head of household, claiming your daughter for everything. If you want to be nice, I’d have you sign an 8332 form releasing the dependency exemption for your daughter to your ex so he can have the exemption and the child tax credit.

And I think that’s what the new CPA will be doing as well. But I still don’t understand why the IRS is denying your ex the right to claim his own son–there’s something fishy there and I honestly don’t know what it is. Good luck.

melissa on Sun, 26th Feb 2012 8:33 am


my question….i have 2 children with a man that i was never married to…when we split up, we went to court for childsupport and at that time, the judge awarded him the right to claim our oldest on his tax return every year as long as he is current in support. my kids dont live with him…in fact we live in different states and they hardly see him or talk to him….he only pays about 1000 a yr in childsupport if that…can he really get the eic every year for him like he does?

Admin Roberg on Mon, 27th Feb 2012 2:04 am


Hey Melissa–
Your ex can never claim EIC. NEVER! It’s against the law for him to claim EIC. I want to make that perfectly clear–Never! As long as your children live with you, your ex does not get the EIC.
You ex was awarded the dependency exemption–the gives him the exemption and the child tax credit–you get the EIC and the head of household designation.

You should also read this: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/ It might be relevant to your case.

nikki on Mon, 27th Feb 2012 4:41 pm


yes he is both of their fathers, he is not supposed to be claiming my daughter for anything other than the child tax credit and I did tell him I would sign the 8332 for her also, he has never tried to claim EIC on either child because they have never lived with him, I let my son stay with him for the most part of 2011 because he needed that father figure, so only to be fare I told him to file for the EIC but they shot it back because he has no proof. I am just worried that if he continues to fight it they will make it to where neither of us can claim him!

Admin Roberg on Tue, 28th Feb 2012 3:17 am


@Nikki–
I still don’t see that you did anything wrong. You haven’t even filed yet. Someone else is messing with you guys. Unless there’s something you’re not telling me–I’d stand tall and hold your ground.

Chantel on Wed, 14th Mar 2012 3:47 am


Hello-
My brother is having a bit of a strange situation with his taxes. He and his daughters mother were never married and from the beginning they set up joint custody agreement in court. They both have her live with eachother 50/50. Her primary address and school is with her mother in the town she lives in. From the first year of filing their daugher, They had been filing her every other year (my brother getting the even years) During 2010, my brother was deployed to afghanistan. To keep things the way that it was before he left, I took over his part of the 50/50 living arrangement, and was also awarded power of attorney while he was away. Recently, he recieved a letter from the irs because she was claimed twice for 2010, and isexpected to pay back around 3,500 dollars. I have read that if a child is claimed twice in a year there is a tie breaker rule through the irs. Because of his deployment he clearly made more money than she did. Her mother felt that because he was gone, he didnt have the right to claim her. Is there anything that he can do to avoid having to pay this amount of money back to the irs. His daughters mother has 2 other children with 2 other fathers and is starting to put up a problem about the tax issue because she is seeing how much money she gets back by claiming 3 children. does my brother have anything to stand on with the fact that they have joint custody and each have her 50/50?

Chantel on Wed, 14th Mar 2012 3:52 am


and…. why would they audit him and not her. There is clearly a history of the alternating of years. He was ordered to pay child support from the time she was born, and also buys clothes, food, and pays for all school activities. Please tell me he has something to stand on with this topic. He had contacted the person on the letter and they said he had to have proof that they agreed on every other year. Now, another question is….why are they automatically siding with her when everything is equal?

Admin Roberg on Thu, 15th Mar 2012 2:21 am


Hey Chantel,
and hi to your brother too! A couple of things.
1. His ex is getting audited too. I’m sure of it. Both parties are expected to file paperwork.
2. You are taking care of the child while your brother is in Afghanistan? yes?
3. But your brother is the one who is claiming your niece on his return. You are not claiming the child on your return?
4. And the child lives with you for over 6 months? Correct? But you live in a different city from where she goes to school? So, how does she get to school every morning? This is probably the most important question I’m asking you. Can you get back to me on this? thanks.

Admin Roberg on Thu, 15th Mar 2012 2:34 am


Actually Chantel,
I think I’ve got your answer already–if your brother claimed EIC for his daughter–he can’t. Your his sister, not his wife–so he can’t claim that he’s living with his daughter. If he were married–then it would be different, then he could be overseas and his wife could be with the child. But the bottom line is–you’ve got to live with your child to claim EIC.
No you, on the other hand, might be able to claim her because you’re the one who’s taking care of her–if you really do have her for over 6 months. If you don’t, then you lose that case too.
But–he does have an agreement that allows him to claim the child, that would give him the child tax credit and the exemption. If the agreement won’t hold up by IRS standards then he’ll have to have his ex sign a form 8332 to allow him the exemption and child tax credit. See the post on court ordered exemptions to find out if his documents will work for him or not: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

I was hoping that there was some special exception for military members–there’s a bunch of stuff about EIC and the military–but the 6 month rule doesn’t have an exception to it. Sorry.

concerned tax filing 2011 on Thu, 12th Apr 2012 3:32 am


I don’t think the following post was answered: I have the same question regarding step parents income with a true 50/50 split leading to the tie-breaker rule:

“Quick follow up to Michael’s post on “true” 50/50 splits. Is the AGI calculated on the 1040 filing, or independent income? Example: one parent remaried, does the new spouse’s (step-parent’s) income count towards one side of the AGI calculation?

Maybe this is clearer:

Mom makes $1
Dad makes $2
Mom’s new husband makes $2 and files joint.

Who has the higher AGI?”

Admin Roberg on Sat, 14th Apr 2012 12:53 am


@concerned tax filing–
The higher AGI will be the Mom with her new husband. The step parent’s income counts.

Sheila on Wed, 18th Apr 2012 3:18 am


I am the custodial parent and am taking the EIC. My ex gets the exemptions for our children as stated in our divorce decree. I have been trying to file on line, but Taxact won’t let me claim the EIC without also adding my 2 children as exemptions. Is there a way to do this online, or will I have to fill on paper?

Admin Roberg on Wed, 18th Apr 2012 4:25 pm


Sheila,
you’re using TaxAct instead of 1040.com and asking me for help? Now where are you filing next year, sweetie? Thank you.

Okay, here’s your problem–(aside from not using 1040.com on the Roberg Tax Solutions website) you need to input your kids on the dependent screen, but then there’s a box that says “claiming for head of household only” or something like that. All of the tax programs are a little different, but basically, it’s with those check boxes on the dependent screen that you’re going to mess with.

The final return will show just you and your exemption on the front–it will have you as head of household and list one of the kids’ names and social security numbers up by the filing status area–and then it will have the EIC pages with both kids names on it.

You should be able to e-file with no problems.

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