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

November 4, 2011 by
Filed under: Divorce 
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Sometimes when I’m working with a divorced couple, it seems that the most beneficial way to prepare the tax return is to split the exemption for their child. When I say that, they always tell me, “But I heard that was against the law!” No—that’s not exactly true. But let me tell you, there is a right way and a wrong way to do it. If you follow the rules and do it correctly, it’s not only legal, it’s the right thing to do. Warning: if you don’t follow the rules, you could be breaking the law. I give a lot of advice to do-it-yourselfers, but if you’re planning to split an exemption, I recommend you go to a professional for it. (And if she tells you it can’t be done—hire somebody who knows what she’s talking about.)

With most divorced couples (I’m including here couples who were never married but have split apart and have lived apart for at least 6 months of the past tax year), one parent (usually the mother) has custody and the other parent (usually the father) has visitation rights. A lot of couples say that they have “joint” custody – for example, the kids stay with the dad every Wednesday night and every other weekend and with the mom the rest of the time. If you count the days, under IRS rules, the mother wins on the custody status. According to the IRS, wherever the child spends the most nights is where the child lives—if you’ve got one of those every other weekend and every Wednesday night agreements, the IRS doesn’t count that as being equal.

In my example, I’m saying the child lives with the mother. In IRS lingo, the mother in this example is the “custodial” parent and the father is the “non-custodial” parent.

In this case, the mom has all the power—she’s the custodial parent. The mom can claim all the benefits of having a child on the tax return. Those benefits include:

  • Head of Household filing status-a lower tax rate
  • Childcare tax credit-credit for money you spend on daycare
  • Childcare exclusion-so you don’t get taxed if your company pays for daycare
  • Earned Income Credit-this can be worth up to $3,094 for one child
  • Exemption for the child-a deduction of $3,600 off your income
  • Child Tax Credit-worth up to $1,000

When tax professionals tell you that you can’t split exemptions, what they’re reading is the section of Pub. 17 (that’s like our Bible for tax stuff) that says these things always go to the same person. What they’re not reading is page 31—the part that tells you about the special rules for divorced or separated parents. Under the special rules section, it says that the mom (our custodial parent) can release the exemption for the child to the father (the non-custodial parent). This lets him claim the exemption and the child tax credit on his return, while the mom keeps the head of household status, the dependent care credit, and the EIC on her return.

Why would anyone want to do this? Lots of reasons! Number one, of course, is to maximize the amount of money you get back from the government. A lot of times, after a divorce, the mom doesn’t have a very high taxable income. Remember, child support isn’t taxable. The dad has lost a lot of his deductions so his tax bill could be pretty high. He’d probably never qualify for an earned income credit anyway, but the $1000 child tax credit would really help him out. If the mom’s taxable income is really low, she wouldn’t even qualify for the $1000 child tax credit. In some cases she could give it away without it hurting her at all. Or maybe the father is behind on child support, she could negotiate: if he catches up on the child support by December 31st, she’ll sign the form to allow the father to claim the child’s exemption. Remember, when claiming the exemption for a child, the custodial parent has all the power. If the dad claims the child without permission, the mom can just file her own return fully claiming the child and sending the dad’s return to the IRS audit division. You don’t want that to happen.

Splitting an exemption isn’t the best choice for everybody. You have to look at both returns and see if it’s going to work. It also helps to be on good terms with the ex—this certainly doesn’t work well with people who are fighting.

There are a lot of other rules that I haven’t even touched. (That Pub. 17 book is 295 pages long!) But if you are divorced or separated, you need to know that splitting an exemption might be an option for you to use on your income tax return.


Note:  We try to answer all the questions that come to us but please be patient.  It’s our busy season right now.  We may not get to your post until the weekend.  When you make a post and use the capcha code, it won’t immediately show up.  You see, for every normal person like you that posts, there’s about three advertisements for things your mother wouldn’t approve of.  (We try to keep this a G rated website.)   We have to edit those out.  If you need an answer right away, here are some links that might help:

EIC questions of any kind:  http://www.irs.gov/Individuals/Earned-Income-Tax-Credit-(EITC)-%E2%80%93–Use-the-EITC-Assistant-to-Find-Out-if-You-Should-Claim-it.

How to find free tax preparers:  http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers

How to find your local IRS office:  http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1

If you want to hire us, please call (314) 275-9160 or email us.  We do prepare returns for people all over the country (and a few foreign countries as well.)  We are sorry but we cannot prepare an EIC return for someone outside of the St. Louis area because of the due diligence requirements.


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

  1. Child Tax Benefits | SavingSmith.com on Mon, 12th Dec 2011 11:37 pm
  2. […] Split Exemption: Claiming One Child on Two Tax Returns — The .. […]

  3. LAR on Sat, 28th Jan 2012 5:08 am
  4. 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?

  5. Jan Roberg on Sat, 28th Jan 2012 5:13 pm
  6. 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.

  7. Del on Mon, 30th Jan 2012 4:03 pm
  8. 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?

  9. Admin Roberg on Tue, 31st Jan 2012 2:23 am
  10. 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.)

  11. Rey on Sat, 4th Feb 2012 10:39 am
  12. 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…

  13. Admin Roberg on Sat, 4th Feb 2012 2:24 pm
  14. Hey Rey,
    I answered you question on the “My Ex Claimed my Kid” page.

  15. David on Sat, 4th Feb 2012 8:58 pm
  16. 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,

  17. Admin Roberg on Sun, 5th Feb 2012 2:22 am
  18. 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.

  19. Farron on Sun, 5th Feb 2012 9:13 pm
  20. 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?

  21. Admin Roberg on Sun, 5th Feb 2012 10:24 pm
  22. 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?

  23. Scott on Mon, 6th Feb 2012 1:57 am
  24. 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.

  25. Admin Roberg on Tue, 7th Feb 2012 2:12 am
  26. 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.

  27. Emily on Thu, 9th Feb 2012 9:46 pm
  28. 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

  29. Jan Roberg on Sat, 11th Feb 2012 5:14 pm
  30. 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.

  31. Michael Siebert on Sat, 11th Feb 2012 5:16 pm
  32. 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.

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

  35. Mel on Sun, 12th Feb 2012 8:45 am
  36. 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

  37. Admin Roberg on Sun, 12th Feb 2012 8:53 pm
  38. 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.

  39. Mel on Mon, 13th Feb 2012 10:56 pm
  40. 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.

  41. Admin Roberg on Tue, 14th Feb 2012 3:49 am
  42. 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.

  43. Stan on Sat, 18th Feb 2012 5:15 am
  44. 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?

  45. nikki on Wed, 22nd Feb 2012 10:28 pm
  46. 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?

  47. nikki on Wed, 22nd Feb 2012 10:34 pm
  48. 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!

  49. Admin Roberg on Fri, 24th Feb 2012 2:45 am
  50. 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.)

  51. nikki on Fri, 24th Feb 2012 9:35 pm
  52. 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.

  53. Lorie on Sat, 25th Feb 2012 12:06 am
  54. 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!

  55. Admin Roberg on Sat, 25th Feb 2012 10:26 pm
  56. 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.

  57. melissa on Sun, 26th Feb 2012 8:33 am
  58. 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?

  59. Admin Roberg on Mon, 27th Feb 2012 2:04 am
  60. 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.

  61. nikki on Mon, 27th Feb 2012 4:41 pm
  62. 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!

  63. Admin Roberg on Tue, 28th Feb 2012 3:17 am
  64. @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.

  65. Chantel on Wed, 14th Mar 2012 3:47 am
  66. 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?

  67. Chantel on Wed, 14th Mar 2012 3:52 am
  68. 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?

  69. Admin Roberg on Thu, 15th Mar 2012 2:21 am
  70. 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.

  71. Admin Roberg on Thu, 15th Mar 2012 2:34 am
  72. 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.

  73. concerned tax filing 2011 on Thu, 12th Apr 2012 3:32 am
  74. 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?”

  75. Admin Roberg on Sat, 14th Apr 2012 12:53 am
  76. @concerned tax filing–
    The higher AGI will be the Mom with her new husband. The step parent’s income counts.

  77. Sheila on Wed, 18th Apr 2012 3:18 am
  78. 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?

  79. Admin Roberg on Wed, 18th Apr 2012 4:25 pm
  80. 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.

  81. Chris on Tue, 22nd May 2012 2:48 am
  82. I am currently trying to work on a custody agreement with my soon-to-be ex-wife and have some questions on the best way to set up the tax portion of the agreement. I am planning to set it up as 50/50 and would like to assume this is how it will work out but there is always the chance that she will get more custody. So, here is a little info about us: I make more money than her (~$50k), she is on social security disability and can only earn a max of $1k/month which all together still puts her under the EIC requirements, she has sole custody of another child (was my stepdaughter). I am wondering if we do settle on a true 50/50, would it be in my best interest to 1) claim our child every other year, 2) I claim the exemption and credit and she claims the EIC/HofH/Dependent Care, or 3) As the higher income earner, try to claim everything? What would be the 2nd best scenario if she won’t agree to the best scenario? What if she ends up with more overnights? Also, do I have any rights in claiming my ex-stepdaughter? Thanks, Chris

  83. Admin Roberg on Thu, 24th May 2012 6:53 pm
  84. Hi Chris,
    This is my recommendation– you claim the exemption every year and your ex claim the head of household EIC. Here’s why:
    First, usually the mom winds up having more time with the kids than the dad, even with a 50/50 agreement–so you may as well plan for that now.
    Second, since she’ll win with the IRS on the custody, your best bet is to get the child tax credit and exemption. Have her sign the 8332 releasing all future claims to the exemption before the final divorce papers are signed. That keeps you from having to go back and fight it every year.
    Third, and this will be important later, the parent claiming the exemption also claims the college credits. Now who knows what that will be like when your daughter goes to college, but right now that’s worth up to $2500.
    Now about your step daughter, because you married the mother, you are the step father and that does give you some dependency rights. That said, I’m guessing that there is a paternal father involved somewhere so that makes your case trickier. If the paternal father has retained his tax rights–well I doubt you’ve got a chance, but if he’s completely out of the picture, you could at least try to argue for it. (If you don’t ask, you don’t get.)
    Best case scenario for you, claim exemptions to both chidren every year as long as they can be considered dependents. Second best scenario, you claim yours for as long as she can be considered a dependent. Your next best option would be to claim every other year, but I’d still get the 8332s signed in advance. I spend way too much time helping people fight this because they don’t have that piece of paper. Good luck.

  85. ltdn on Wed, 30th May 2012 9:51 pm
  86. Here’s the situation: Divorce decree says ex and I each take one of the kids for income tax, which we have been doing. Ex is now taking me to court and wants to claim both kiddos because he pays child support and I don’t work. His argument is that since he’s paying for everything (which we both know isn’t possible), then he should be able to claim them both. I am currently remarried and have other children as well (and for the record, my now husband’s income also pays for his stepchildren. It’s not just my ex’s child support that pays for the). Kids are 60/40, with me 60 currently. Do I have a leg to stand on here to claim one of the kids on my taxes?

  87. Admin Roberg on Tue, 5th Jun 2012 1:42 am
  88. Hi Itdn,
    I think you’ve got pretty strong legs to stand on. Your not working really has nothing to do with anything because you have taxable income through your husband. Also, since you’re married–getting the head of household claim does you no good because your married status is what you file with. And, depending upon how many children you have–being able to claim EIC might not benefit you much either.

    So really, all you have with these two kids is the exemption and child tax credit and your ex already gets that for one of the kids.

    So what’s all this really worth to your ex anyway? $1000 a year for the child tax credit–and that might be going down depending upon what happens in Congress. And a tax deduction of $3700. Let’s say he’s in the 25% tax bracket–that would save him 925. So all told–probably less than $2,000 a year. (He can’t get EIC or head of household so all it’s going to do for him is less than $2000 a year.)

    How much is going back to court going to cost him? I mean really? Now, if your ex is in a lower tax bracket–it’s even less money.

    Then again, if you lose–remember it’s really only about $2000 a year. And if the child tax credit goes down to $500–well there you go–even less.

    So–knowing the score is half the battle. I’m not a lawyer, so I can’t give legal advice so you’ll need to talk to your attorney if your ex decides to go through with this. But–if he’s coming after you to change the conditions of the divorce decree–then I would want him to pay more child support every year for you to release the exemption. Hmmmmm–like $2000 a year more? Seems to that that would more than pay for him taking the credit away. Just sayin’ is all–. That’s not legal advice, that’s just me figuring what the net tax benefit of you claiming your child’s exemption is for you.

    I realize I wasn’t able to give you a complete answer, hopfully just a little ammunition. Hope everything turns out okay.

  89. Cynthia on Mon, 18th Jun 2012 3:35 pm
  90. I dont work and my brothers lived with me last year so i gave them permission to use my 3 kids in there income tax but they came back telling me that someone already claimed them. I thought it was my ex but i havent received any returned money….so the question is what if someone other than my ex or my brothers used my kids social numbers, what can i do? Is it to late to even do anything at this late time of year? I really thought it was my ex since his still trying to make my life misserable in any chance he gets n doesnt really care or mind our kids as much but when it comes to money wow he`ll do what he can. Im not a money hungry mother but that money i use for my kids uniforms, school shoes, school supplies, braces, copays and well anything they may need. And now the summer is almost over and i will not have any money for all that. I miss working but my kids have gone thru alot n are still going thru alot….therapy that its.

  91. Admin Roberg on Tue, 19th Jun 2012 1:20 am
  92. Hi Cynthia,
    I’m going to send you to a different blog post: http://robergtaxsolutions.com/2011/01/my-ex-claimed-my-kid-now-what-do-i-do/
    because I think that will be the most helpful to you.

    But first, I have more questions for you:

    1. Did your brothers live with you all year?
    2. Did they support you and your children since you had no income?

    if so–then one or the other of them should be able to claim your kids on their tax return. Here is the IRS link to determine if your children can be considered as “qualifying child” to any of your brothers.

    Bottom line, if your brothers fail the test–don’t pursue it. But–if your children can be counted a qualifying children to one of your brothers–then by all means you should fight for it.

    It’s not too late. You will need to paper file the returns. Like I said, read that other post, I give more instructions there.

    If your ex claimed the kids but doesn’t live with them, he can’t claim EIC or head of household. (Maybe he can claim the exemption–maybe that’s why you’re at this post–but only someone who lives with the kids can claim EIC.)

    If it’s not you, your ex, or your brothers, then you seriously need to file just to put a stop to whoever is using your kids social security numbers. (Even if it is your ex–you might need to put a stop to it if he doesn’t have a right to claim them.)

    You might want to get some help with this. Be careful about letting other people claim your kids. It’s really important that you’re 100% in the rules if you’re going to paper file the returns and put up a fight. But if you are in the right (and I think you are) you can even get free help from the IRS. You’ll have to find an office in your area, but they want to put an end to people fraudulently claiming other people’s kids too so they should be willing to help you. (Note: some of them are more willing and helpful than others–but they should help you.)

  93. Becky on Thu, 21st Jun 2012 5:49 am
  94. I have a couple questions after I let you know that I have really enjoyed your page and thank you for all the helpful information!!

    I previously lived in the same state as my daughter’s father so we just split costs 50/50 but she lived with me most of the time. Then I moved away and filed for child support. I am unemployed at the moment and have been living off savings however child supp was approved for about $4800/yr. Since I do not have a job, I am not paying for child care so this support money pays for most of her expenses. However, when I get a job and she goes to daycare and has insurance that I pay, this will be about half. Since he lives 1000mi away, he only sees her about 4-5 times/yr for about a week each.

    I would like to be fair about giving him the tax exemption but I have no idea on what would be fair and would like to get your opinion. He will be paying about half of her current expenses but I am the one who cares for her and he only sees her once in awhile, (not his choice, he is looking for a job to move closer).

    If he lived closer and could see her more often, I would have no problem letting him claim her everyother year. However, since he doesn’t right now, I don’t think that would be fair to me. I want to try to make this as fair as possible for both of us so we don’t need to go through the courts. Any ideas on what a good range would be? (every 3 or 4 years he can claim her?)

    Also, I am a little puzzled when you state that if the non-custodial parent claims the child, he gets the exemption and tax crts, and the custodial parent can still claim HOH, childcare expenses, and EIC. I mentioned this to my mom who stated that she read in the IRS website that these benefits can’t be split. I then found this in Pub 501, Pg 14, 3rd Column. There are just so many rules that I could be missing something. Can you please advise on where it states that the custodial parent can do this? I just wanna cover my butt since my mom did mention this to me.

    Thank you so much in advance.

  95. Cynthia on Fri, 22nd Jun 2012 9:07 pm
  96. Thank you. As to your questions…yes they lived with me and yes they supported me and my kids all year. I sure hope they can help me out though. I already started buying school supplies that aare on sale and uniforms and i spent about a grand for all three in 2 stores….
    Thank u again and i will be looking into all this.

  97. Admin Roberg on Sun, 24th Jun 2012 2:00 pm
  98. Okay Becky–
    First for the geeky tax part. Go to the IRS website: http://www.irs.gov/pub/irs-pdf/p17.pdf
    In publication 17, go to page 30 and scroll half way down–that explains the split exemptions part. If you have a hard copy of the book, you’re looking at page 28.

    Thank you for questioning that! Seriously. Don’t believe everything you read from some idiot on the internet. (Even if the idiot is me!)

    But now you’ve got your back up to show you can split the exemption–under the right circumstances.

    Now about what’s fair–only you and your ex can determine that. But here’s a few guidelines that might help you:

    1. Since you have custody–only you can claim EIC and head of household.

    2. You may allow your ex to claim the exemption and child tax credit by signing the 8332. If he’s paying his child support on time and you have no income–it’s probably best to just sign it and let him have the money (as you’d get none) and it will help him pay the child support.

    3. If your ex manages to get a job closer to you and you two can split the custody evenly–then you have some options. If you two are both working together to do what’s best for your daughter–well then it will be easy to make decisions. Do what brings you the most money together and put the excess in a 529 savings plan for her college.

    4. If you’re not working together to do what’s best for your daughter–then you have issues. And one would be–why give the jerk joint custody if he doesn’t have your daughter’s best interests in mind? Which–makes your answer easy again now doesn’t it?

    But, it sounds to me like you’re trying to be fair, and he’s trying to be a good dad. That’s a pretty winning combination. Whatever you work out will be good, because you both sound like good people.

    Final piece of advice though: only sign paperwork to release claims (like the 8332) for one year at a time. Never sign to release something permanently–sometimes circumstances change and you always want to keep your options open. Good luck.

  99. Admin Roberg on Sun, 24th Jun 2012 2:35 pm
  100. @Cynthia–
    Kids are expensive! Good luck.

  101. Becky on Sun, 24th Jun 2012 5:14 pm
  102. Thank you for your advice! However, let me clarify that my interest of my question and confussion was from if I currently have a job (I hope to have one soon). When I do have a job and am making money where it would matter if I claimed her as an exemption, and he lives 1000 miles away, what do you think would be fair for him to be able to claim her, every so many years?

    I think it would be fair for him to claim her every other year if he was living closer and seeing her about half of the time, however with him only seeing her every so ofter, I would think it should be like every 3 or 4 years. What do you think if currently had a job?

  103. Admin Roberg on Mon, 25th Jun 2012 2:20 pm
  104. Hey Becky,
    You’re asking what I think is fair? I’m afraid that I can’t answer that question. I can tell you tax law–that’s what I do for a living–but fair? That’s between you and your ex. It might also be something in your court documents also–then it wouldn’t matter what I thought was fair or not. Sorry for the cop out, but it’s a question I can’t answer.

  105. Becky on Thu, 28th Jun 2012 6:31 pm
  106. I’m sorry to keep bugging you. Can you please let me know what the tax law is in most states for this? I have been trying to find out what most states would grant but I do not even know where to start to find this answer. If I can get an idea of what the court would grant, as they have not put anything in the child support order for this, then I can go from that to get an idea. He is in NC where the jurisdiction is and I am in WI, but if I can know either for these states, or average, or any state, that would help. Any information would be appreciated!

    Thanks alot!

  107. Admin Roberg on Thu, 28th Jun 2012 8:06 pm
  108. Hi Becky,
    I can help with the tax law. Most states follow along the federal rules. North Carolina is definitely based on federal law, Wisconsin is less so–but the exemptions you claim are based on your federal return.

    Now–about the court–that’s a whole different story. I just got off the phone with an IRS agent about someone else’s case. The big problem that we see (me and the IRS on the same side on this issue) is that there’s a whole bunch of divorce lawyers and judges out there who don’t know beans about federal tax law. If your divorce decree violates federal tax law–well then it’s pretty worthless as far as the IRS is concerned.

    Earlier, you had asked about what was fair–I didn’t want to answer that because how do I know what’s fair? But–let me be your advocate–not necessarily fair but I think you need an advocate, okay? It sounds to me like you are going back to court over this so here’s my advice: Your ex gets nothing! You are the custodial parent–you get all (let me repeat–you get ALL) tax credits or exemptions. No negotiations. End of story.

    Why am I such a XXXXX over that? Here’s why–this leaves you with the power to give your ex the exemption on an annual basis if you so choose. He doesn’t pay child support? No exemption? He’s a butthead? No exemption. He’s a good, decent human being who does a great job of being a dad? Exemption. You can’t possibly use the exemption yourself? Exemption.

    See how that works? Don’t give up anything. Now, you may have to–but start from the stand point of he gets nothing. Do not, I repeat, DO NOT give him the exemption forever–you will regret that. Many divorce cases do alternate years. I have never seen one for every threee or four years. (Just letting you know.)

    Now, even if the court gives him “head of household”–oops–that violates federal law and they can’t do that. Make sure that your attorney is educated about this stuff (some of them are–it’s the ones that aren’t that screw things up for people.)

    Good luck, it’s got to be stressful for you. I can only imagine how awful it is to go to court over your own child. So just imagine you’ve got a little tiny Jan hiding in your purse going, “You’re okay Becky. Stand your ground!” Okay, that’s probably the stupidest thing I’ve ever posted on the web site. But if it works, then it’s worth it.

    As things stand right now–you’ve got 100% custody. He’s got nothing. Now what does the exemption cost your ex if he doens’t get it? Let’s say he’s in the 25% income tax bracket. The exemption is $3700–the tax savings he’d get on that 3700 is $925. Plus he’d also get the child tax credit–that’s $1000, so a total of $1,925 a year until your daughter turns 18 is what’s on the table. So–any discussion of you giving up the exemption should include you getting at least that much money in child support. It helps if you know the dollars involved.

    Hope I’ve given you enough to work with. (And when you’re all done, please let me out of your purse, it’s dark in there.) :)

  109. Becky on Tue, 3rd Jul 2012 4:12 pm
  110. Thank you!! That helps a great deal! I was trying to stay out of court and keep the exemption and give it to him every once in a while (every 3 or 4 years) (since he doesn’t live close). When he moves closer to see her about half the time, I can think about every other year. He does pay child support and he is a good dad, it is just that I pay for her and he only sees her about 4 times per year (for a week). He is looking for a job to move closer however it isn’t working out that way yet. He would come see her more if he had the money and the time off of work. I’m sorry if I wasn’t so clear earlier.

    Thanks alot!!

  111. Camille on Tue, 10th Jul 2012 2:14 pm
  112. Hi,
    I have been divorced since 2008, my ex-husband decided that he has the right to file for our Daughter because he pays child support every Month, in our divorce degree he was suppose to have his Daughter on his Medical Insurance as well as split all Medical expense and shared aftercare, he has done none of these, but still went ahead and sent in our divorce degree to the IRS that states”The Husband, shall have the right to claim the minor child as an exemption on his state and federal income tax returns, 1. he is no longer my husband, he is now considered child’s father, we got married in Florida in 2002 and got a divorce in Georgia, have been living in Florida since 2008, my Daughter has been living with me since 2008 and he only has visitation rights every other weekend, I have been filing for my Daughter because i’m am the primary custodian parent and now the IRS is auditing me for the child care credit and head of household, how can this be? My Daughter has never lived with the father since our Divorce she has always lived with me, I sent in Paperwork to the IRS confirming that she lives with me and that i registered her in school, everything and they are still disallowing me the all the credits of my child living with me, what can i do, this is wrong, they are auditing me for 2009 and 2010, he has not contributed nothing other than Child support, doesnt he have to show proof that the child has been living with him, why should i get audited for my child that i take care of he has her 48 days out of the year and i have her 317, he doesnt even take her for summer break, something has to be done, Please help…………..thank you

  113. Admin Roberg on Tue, 10th Jul 2012 3:22 pm
  114. Hi Camille,
    First–breathe. I know, that’s the hard part sometimes, but this is really stressful stuff. Okay. Ready?

    Now–your EX-husband–when they refer to the husband in divorce documents they mean EX, but I can see how that would tick you off. Anyway, you were divorced in 2008–and the divorce decree gives him permission to claim your daughter’s exemption. Because it was 2008–he can send in a copy of the divorce decree to do that. Here’s some information on that: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    But–and this is the important part–that’s all he gets. You get to keep head of household and the child care credit (and EIC if you qualify for that). So, when you tell me you’re being audited for head of household–that makes me think HE screwed up. Because HE claimed everything and he shouldn’t have.

    So–it looks to me like you’ve done all the right stuff, at least you sent your paperwork in. I’m thinking he read something about claiming kids and went back and amended all his returns (or maybe is just filing for the first time) and so you got caught in the crosshairs.

    So–the worst case scenario is that you lose the exemption and the child tax credit. You will not lose your head of household status or child care credit.

    But this is what I want you to take a good look at–go look at your divorce decree. Look carefully. The reason I’m asking is that if your husband is required to pay child support in order to claim your daughter (or any other condition for the exemption–like putting her on his insurance) then the divorce decree will not be sufficient for him to use to claim the credit. You need to know that.

    Here’s what happens–your EX mailed in the relevant pages of the decree to argue his case. It got looked at, signed off on and you get an audit letter. There may be a condition about him getting that exemption that was overlooked. The IRS is going to take the easy route. I remember several years ago, back when I was at the big tax company and we had an audit over claiming a child–there were 5 different tax pros going over that divorce decree (because we were losing the audit and it would have cost us money.) And remember, it’s all lawyer language so if that’s foreign to you, get somebody else to look with you.

    Bottom line: if there are any conditions in the divorce decree to him being able to claim the exemption–then he doesn’t get the exemption unless you sign an 8332 form.

    But–when I read your post it looks like they ruled against you. I hate to answer a question with another question but I’m confused–you said you sent in all the paperwork confirming that your daughter lives with you and they are still disallowing you your credits? Or did something cross in the mail? Because you at least get head of household and the child care credit. At the very least–so if you’ve done everything and they’ve come back to you and said–“No.” Then I’m concerned. If that’s the case–you may want some professional help to back you up. Even going into the local IRS office and presenting your documentation (with your daughter in hand–nice touch) is better than nothing. Unless I’m missing an imortant part of the story–and I don’t think I am–you’re the had of household.

    I can see you losing the child tax credit (that’s $1000) but not head of household or child care credit.

  115. Beth on Tue, 9th Oct 2012 4:20 pm
  116. OK, here’s my question. I have a shared custody agreement with my ex (never married) he gets to claim our child on odd years and I claim him on even. The ex is responsible for daycare costs per signed court order. Since I am claiming our son this year does that mean he can still claim daycare costs on his taxes? Do I claim them or does nobody claim them? I would also like to add that per order I am the custodial parent.

  117. Admin Roberg on Sat, 13th Oct 2012 6:42 pm
  118. Hi Beth,
    I don’t count “court order” custody, but who does your child really live with? I’m guessing it’s you. Bottom line, even if your ex gets to claim the dependency exemption, the custodial parent (real custody, not court custody) is the one who has the qualifying child for the dependent care credit.

    But–and this is important, the parent who is eligible to claim the credit for the child, must be the one to pay the expense–so you’ve kind of lost it there.

    Now if your child actually lived with your ex–then he could claim the child care credit. Sorry, it looks like a losing situation. I wish I had a better answer for you.

  119. Jeremy on Mon, 15th Oct 2012 7:46 pm
  120. Hello, I have visitation rights to see my Daughter, and in the Pappers it says that The Father can claim the Exemptions in Even years, well thats what i did and i got a letter in the mail from the irs saying i was over paid, and i owe them money, How is that? The mother also agreed to the terms and signed the papers, i filed with my wife, not the mother can someone explain this to me as why i owe money? It says the exemptions, so i took that as all, not any one exemption but all for the even years

  121. Admin Roberg on Tue, 16th Oct 2012 12:40 pm
  122. Hi Jeremy,
    So it seems to me that you claimed the whole thing–head of household, and maybe even EIC–that’s what got you into trouble. When you get to claim the exemption–you only get the exemption and the child tax credit, that’s it. If that’s what you did–then just pay up or set up an installment agreement to pay–you won’t win on that one. Sorry.

  123. Lisa Marie on Sun, 21st Oct 2012 6:10 pm
  124. So, I’m in need of some advice. My child’s father is taking me to court to try and claim her on alternating years on his taxes. He does pay child support, but that is it…….He has never even met her. I’m very concerned as to how this will impact me and my taxes. I’m a single mom and only have this one child in question. If by chance, the courts decide to rule and let him take the exemption, will I lose my head of household status and will I be able to claim the dependent care credit and the earned income credit? If he is granted permission to use her as an exemption he will have to list her social security number on his taxes, will I be able to list her as well for head of household. I’m very confused and extremely worried about how this might impact us. Also, in your experience, if the court rules in his experience, will they specify that he is only to use the exemption, and not the dependent care credit and earned income credit and head of household. Thanks for any help or advice you can offer.

  125. Admin Roberg on Sun, 21st Oct 2012 7:50 pm
  126. Hi Lisa Marie,
    I your ex is awarded the right to claim the exemption, you will still keep the head of household status, the earned income credit, and the dependent care credit. Sometimes a judge will try to award these things as well–but it is a violation of federal law. So it’s rare–but sometimes you get judges who are completely ignorant, sorry to say. Make sure that your attorney knows the tax law so that you can be proetected.
    Losing the child tax credit basically costs you $1000 for the child tax credit (if Congress doesn’t extend the Bush tax cuts, that will go down to $500) and whatever the exemption is worth to you. For example, if you’re in the 15% tax bracket, that would be about $555. So basically, if you’re giving up the exemption, it will cost you about $1500 every other year.
    If your ex makes a lot of money, that exemption will mean more to him than it does to you. Perhaps you could negotiate a little more child support in exchange for the exemption? Maybe not, but if you don’t ask, you won’t get.
    Losing the exemption is not losing everything, it’s very limited. Also, because this will go into effect after 2009–you ex will need to have you sign the 8332 form in order for him to claim the exemption. That gives you power to make sure that he does pay his child support before you sign the form.

  127. Tee on Thu, 25th Oct 2012 11:26 am
  128. Hello, my daughters father and I were never married. He lives in another state and comes to visit my daughter every other weekend. He pays me $700.00 per month that I pay directly to daycare. My 1st question is although the daycare only knows and deals with me will they be able to put the receipts in his name, and my 2nd question is can he claim daycare without claiming anything else. I m willing to let him claim that because he is actually paying that. FYI no he does not supply any other type of support nor is the $700.00 court ordered. we ve never been to court

  129. gary on Mon, 29th Oct 2012 8:08 pm
  130. Hello there. Thanks for the great info so far. Forgive me if this has been answered before. My wife has a child with an ex before me. We have 50/50 custody, where every thursday the child will be given over to the other parent. Holidays alternate year to year. This agreement has been signed and is in effect since the middle of this year. My wife and I file jointly. Her ex is 25 and lives at home with his parents. Who would claim the child legally in this case. My wife works part time when my work schedule allows it. He works but does not earn what I earn. Since we file jointly, does that count for the AGI? We pay all his medical insurance bills. Would we be able to legally claim the child? Last year we allowed her father to babysit overnight on the odd occasion when my wife would work a little later. We would like to alternate the tax refund year to year but her ex does not want to see reason. We had a verbal agreement last year that we would claim the child and then he would claim him in 2013, but we discovered that this was not the case when the IRS contacted us saying that he was claimed by both of us!!

    Thank you so much for your time.

  131. gary on Mon, 29th Oct 2012 8:10 pm
  132. a correction to the question I put here.

    “Last year we allowed her father to babysit overnight on the odd occasion when my wife would work a little later”. What that should say is that we allowed HIS (the child’s) father the babysit overnight a couple of times last year.


  133. Admin Roberg on Wed, 31st Oct 2012 9:36 am
  134. Hi Tee,
    You ex cannot claim the daycare credit on his tax return, only you can. It sounds like you have a friendly relationship though–you could offer to reimburse him for the daycare credit that you receive.
    Or maybe you offer to reimburse him for the daycare credit that he would have received if he could claim it. I’m guessing he makes more than you and the daycare credit is based upon income–you might get a bigger credit than he does.
    But as far as the IRS is concerned–he cannot have the daycare credit. It only goes to the parent with physical custody.

  135. Admin Roberg on Wed, 31st Oct 2012 10:46 am
  136. Hi Gary,
    I sounds to me like you truly have 50/50 custody. The child is with you one week and then the ex the next week correct?

    The reason I’m being so picky on that is because the IRS will say–but there are 365 days in a year! (Really, they’ve said that to me.) But basically–it sounds like you truly are a 50/50 family.

    You mention the overnight babysitting–but there are exceptions for that as well. That said–you could have issues if the ex wants to claim those days.

    If you truly have equal custody–then the tie breaker is the Adjusted Gross Income. Because you and your wife file jointly–then your income is included with hers.

    It sounds like you may need to go to court to get claiming the exemption in writing. Some people aren’t going to cooperate.

    You could make a deal–you all work together to the “greater tax benefit.” Although I don’t see this happening with you. But I’ll throw it out there anyway–You each figure your taxes separately without claiming your daughter. Then you each figure with claiming the child. Between the two groups you use the situation that gives you the biggest tax benefit–and you agree that the excess money based upon claiming your daughter goes into a 529 plan for her to go to college.

    Here’s the thing–this only works if it happens. If he get’s to claim the child and then he keeps the money–well working together was a waste of time. And since he has a history of not being on the up and up–you might want to get a lawyer and get the tax thing in writing.

  137. Nicole on Thu, 8th Nov 2012 12:00 pm
  138. Hi, I was reading through the post and I have a tax related question. I have 2 dependents and allowed my boyfriend to claim our son. The IRS audited him for 2010 for a Defiency and turned around and audited him for 2011 for EIC. I did not claim my son on my taxes since 2009. I only claimed my daughter. He was also paying child support for my son. He (the father) was living with me in 2011 but when his taxes was done his old address was on the return. Everytime information is submitted to the IRS, they come back 2 months later asking for something else. All of the records are under my name. My son was no longer in daycare in 2011. I never had anything switched to the father’s name. I was looking for some suggestions that could help in this matter.

  139. Admin Roberg on Thu, 8th Nov 2012 12:30 pm
  140. Hi Nicole,
    I’m seeing a couple of things here.
    1. He was audited in 2010–that automatically makes his tax returns suspect. Even though it had nothing to do with EIC before, just be forewarned, you’ll have to work harder to prove your case.
    2. How come he’s paying child support if he’s living with you? See how that sounds to the IRS? If you’re living together, you don’t pay child support.

    I’m guessing that he’s paying now that he’s not living with you–that makes more sense, but you see how any little thing you say can open a can of worms?

    I’m thinking you want some help with this–real help, more than just advice over the internet. Somethings not right and I’d be asking way too many personal questions on line here. But here’s the big thing to look for: if you didn’t claim your son–who did? Why is the IRS asking questions if nobody else claimed the child?

    You mention, “when his taxes was done”–that sounds to me like a professional helped him out. He should be able to get some help there. If not, here’s a link to find an enrolled agent in your area: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx

    So your boyfriend lived with you for all of 2011 but when he filed his tax return in 2012 he still used a different address? And when you come up with proof of where the children lived–they’re at your address, right? I see why you’re having trouble.

    So you want to get professional help in person because his return does generate questions and the questions are all bad. My guess is that you have perfectly good answers to the questions, but you need someone you can really talk to to help you with this whole situation. Sorry but you really do want some personal help.

  141. ARS on Wed, 14th Nov 2012 7:40 pm
  142. Hi! My son and his father are not together. In our court visitation papers it states that my sons father can claim our child every other year on taxes. I heard that I can still receive the earned income credit for my child though since my son has been living with me for over half of the year. (I have full custody of him, he goes to his dads for visitation every other weekend and specific holidays) Well, I was wondering if this were true or not. Can you help me?

  143. Admin Roberg on Sat, 17th Nov 2012 2:00 pm
  144. @ARS,
    Yes, you can split an exemption. Did you read the post above? It’s all about how to do it legally.

  145. Mandy on Tue, 20th Nov 2012 3:35 pm
  146. Question,
    My ex and I share custody of our two children 50/50. Two weeks with me, two weeks with him. I however pay for all the child care expenses when they are with me since I work full time. He is claiming both the children on his tax return this year…can I still file for my child care expenses? How exactly does this work?

  147. Admin Roberg on Wed, 21st Nov 2012 10:30 am
  148. Hi Mandy,
    Only the parent that the children live with may claim the child care tax credit. Is he claiming both kids for head of household and for the exemption? If so, then you don’t get the child care tax credit.
    Since you are a true “50/50″ family–maybe the two of you want to “work it out” and see what makes the most sense for the four of you. It’s worth asking about. Good luck.

  149. Lynne on Tue, 27th Nov 2012 11:48 pm
  150. My boyfriend daughter has always lived with him, but she moved in with her mother on September 9th. Before she only stayed the weekends with her. My question is does he have the legal right to claim her since she lived with him 9 months out of this year?

  151. Admin Roberg on Thu, 29th Nov 2012 8:51 pm
  152. Lynne,
    It sounds like your boyfriend should be able to claim his daughter. There may be other issues that I don’t know about, but he had custody for more that half the year so he winds that one.

  153. SEG on Wed, 5th Dec 2012 12:34 pm
  154. My husband and I are getting divorced. He wants to get the dependent claim for both kids for 2012 and split for years after. Since he lives in a state with no state tax, can I claim the kids on my state return and not my federal return or can I not claim them because he gets to claim them for the federal return? Thanks in advance for your help.

  155. Admin Roberg on Wed, 5th Dec 2012 4:43 pm
  156. Hi SEG,
    That’s a really good question. Generally the answer is no. You file the same filing status and dependents as the federal return. I can’t think of any states that would allow it. (They all get information from your federal return.)


  157. Rita Stevenson on Mon, 10th Dec 2012 5:53 pm
  158. My ex and I divorced in 2004.. when we divorced I was not properly represented and on the divorce decree it says he will claim both kids if I make under 10K and one of I make 12K. Well I got remarried in 2005, my husband came into the marriage with an established business, however I am very involved in the business. I live in the state of Washington which is a community property state and I am a signatory of all the business accounts.

    I have a disabled child who get SSI and my ex husband only pays 100.39 for child support for each child. He never contributes anything else. My husband has paid for school tuition, lessons, tutoring and everything else I can’t afford on my own. My ex husband also has never adhered to the visitation schedule and only sees the kids maybe 3 times per year.

    About 2 years ago he started claiming the kids on his return but never did before. He claims he is entitled to his share but what is exactly his share? He says that the irs only looks at my income alone. IS that true? I know child support does that.

    We both received a letter from the IRS saying that the kids social security numbers appeared on two returns. My husband and I submitted proof of residency to the IRS in the past because this came up. Can I be forced to give him the tax credit because it states something on a divorce decree even though he does not provide sufficient support? My income has increased due to our business. My husband phoned the IRS and they just said no need to be concerned right now. Can his harrasing lawyer force me to give that taz credit to him. They said I could go to jail. I don’t understand… I am the main custodial parent of teenagers and provide over 80% of their support.

  159. Admin Roberg on Mon, 10th Dec 2012 8:39 pm
  160. Hi Rita,
    You’re not going to jail. Okay, I’m not a lawyer and I’m not allowed to give you legal advice (but I’m pretty sure you’re not going to jail.)

    So–your divorce decree says that your ex can claim both your kids if you make less than $10,000 but only one child if you make $12,000 or more.

    Here’s the thing: are there any conditions in the divorce decree? Like, he can claim the kids if he pays child support? Or something like that? I’m sort of thinking that your bit about “he can claim both kids IF I make less than $10,000″ sounds like a condition to me. You’ll have to read the decree closely, but that’s what it sounds like from here. (Remember, I’m not actually reading the document.)

    Anyway, if your divorce decree has conditions (which I’m thinking it does) then as far as the IRS is concerned–he can’t claim the children unless you sign an 8332 form, releasing the exemption. So–in the IRS’s eyes anyway, it looks like you win.

    That said, your ex’s attorney could take it to court and you could be forced to sign the 8332. It’s a good idea to talk to your attorney and see what she recommends.

  161. Alyssa on Tue, 11th Dec 2012 10:32 am
  162. Hi
    my ex and i have been split up for over two years. He only started paying child support in may and has missed payments. He also has not seen her in over 3 months. We do not have nething filed in court about custody but i have always suported her and she has never lived with him. When we set up child support it said that he could claim her on all the odd years and i could claim her on the even. Last year he didnt have a job so i claimed her and this year since he has a job he plans to claim her. I wanted to know if this was legal for him to do? Again he hasn’t bothered to see her in over three months and he only started paying child support in may. Any suggestions? Also we live in Wisconsin.

  163. Admin Roberg on Tue, 11th Dec 2012 8:11 pm
  164. Hi Alyssa,
    Because of the date of your support agreement, your ex will have to get something from you called a form 8332 if he wants to claim your daughter. Now quite frankly, if he’s not caught up paying his child support–you shouldn’t be signing that form for him. The 8332 form is your power trump card. Use it wisely.

    Now, even if he pays the support and you sign the form–it only allows him to claim the dependency exemption and the child tax credit. You still get to claim head of household and EIC.

    Now, this coming tax season is for 2012–that’s an even year so sorry Charlie–he doesn’t get to claim her. It’s not your fault that he didn’t have a job last year. (I’m sorry, I’m not a very nice person. I could have phrased that better.)

    But here’s the thing–once again, you have the power. You may, if you so choose to, sign the 8332 to allow him to claim the exemption. But there is absolutely nothing to make you do it.

    So, is it legal for him to claim your daughter without your permission? No it is not.

  165. Alyssa on Tue, 11th Dec 2012 9:56 pm
  166. Thank you so much. I had so many different people telling me that as long as he was paying child support then he could claim her if he filed before me. I was also wondering if he does file and claim her before I do, will that cause a lot of problems for me when I file my claim?

  167. Admin Roberg on Sat, 15th Dec 2012 4:18 pm
  168. Hi Alyssa,
    He will probably file before you–and yes it will cause problems. (I’d rather be honest and have you be prepared than sugar coat it.)
    Don’t expect to get your refund quickly–but know that you’re in the right and be prepared for the fight. You’ll win.

  169. Carrie on Wed, 19th Dec 2012 12:43 pm
  170. My husband and his ex (never married, never lived together) have a custody agreement that beginning in 2013, my husband will be allowed to claim their son on his tax return for 2013, 2014 and 2015 then every other year after that (as she has always claimed him on taxes because they never had a documented custody agreement until this year – the child is 3). He pays child support and medical insurance for the child. The custody agreement states that the mother will make the necessary arrangements to ensure that my husband can claim him in 2013, however, she will go out of her way to make sure she doesn’t do what she is supposed to, even if she is held in contempt of court. My question is, what is she supposed to do to make it so he can file in 2013 or what can he do to ensure that he can file in 2013? Thank you…my husband lives in Wyoming and his child and the mother live in Nebraska, if that makes a difference. Thank you!

  171. Carrie on Wed, 19th Dec 2012 12:45 pm
  172. And I know, I’m a year ahead of asking but we know that she will turn it into a fight, so we want to make sure we are prepared and understand what it is she needs to be doing and what we need to do. Thank you again.

  173. Admin Roberg on Wed, 19th Dec 2012 9:27 pm
  174. Hi Carrie,
    The best thing your husband can do is get his ex to sign a form 8332. If he’s got that in his hands, it’s his proof that he can claim his child. Here’s a link: http://www.irs.gov/pub/irs-pdf/f8332.pdf

    Ideally it would have been nice if she signed it at the time of the custody decree–but since that didn’t happen, try to get her to sign it now, that way you’ll have it. Good luck.

  175. Angelica on Sat, 22nd Dec 2012 2:34 pm
  176. Hello I am going through a situation where I had agreed to give him one of our children in our taxes if he payed me extra $50 for child support and help with extra costs here and there for example school supplies gifts shoes or toys he agreed but not once did he actually help when I asked for his help. He has started to refuse to pay child support the children have lived with me the full school year and spend only holidays with their father .so I’m wondering what are the next steps are for when he feels he dwarves to claim a child

  177. Admin Roberg on Sun, 23rd Dec 2012 2:43 pm
  178. Hi Angelica,
    So my question to you is–is there a court document that says he gets to claim one of the children? If so, you need to read this: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    If not–then you don’t sign the 8332 for him to claim the child. I know it’s always harder than it seems, but really–if he’s not doing his part, that’s pretty much it. (Unless there’s a court order.)

  179. birdout on Sat, 29th Dec 2012 12:49 am
  180. I am wondering if my babys father claims our daughter as a dependent and head of househould but does not qualify for EIC because he makes to much money can I take the EIC credit? We do live together but are not married.

  181. kash on Mon, 31st Dec 2012 2:33 am
  182. Hi my name is kash,
    I am in the middle of a divorce. Last year wgile married I was able to claim my daughter and step daughter on my taxes. I am not yet divorced nor has it went any further than filing yet. I was head of house hold for 9 months out of the year and was wondering if I could still claim my step daughter again this year. Thank you.

  183. Michael Siebert on Mon, 31st Dec 2012 11:39 am
  184. Birdout,


    Unfortunately, this is not allowed in the following situation. Even though you live together, you cannot share or divide the various exemptions or credits.


    There are different rules for divorced or separated parents where you can split the exemption but even in this case, the noncustodial parent can claim the child for purposes of the dependency exemption and the Child Tax Credit only.

  185. Michael Siebert on Mon, 31st Dec 2012 3:44 pm
  186. Kash,

    Provided you are the custodial parent — the parent with whom the child resides for the greater number of nights during the calendar year—I would still think you can.

  187. Jim Fuls on Wed, 2nd Jan 2013 4:05 pm
  188. I’m asking this question on behalf of a good friend of mine; She had in her care three young nephews for just over 5 months of 2012, they are wards of the state of Oklahoma, Department of Human Services. Because she had to leave the state for military duty, she had to relinquish their custody back to DHS who then in turn placed them in another foster home where they then spent just over 6 months. The 3 boys returned to her care in late December where they are today. Is there any way the tax credits/exemptions can be split since the time where the boys lived was so nearly evenly split or does the individual who had them just over 6 months get all the benefit?

  189. Kimberly Doyal on Wed, 2nd Jan 2013 8:01 pm
  190. My question concerns the ability to claim my brother. my mother had him for the first six months of 2012. However, halfway through the year she decided she could no longer deal with him and he moved in with me. Due to the fact that he was turning 18 at the end of December of 2012, we did not file any custody paperwork or child support paperwork. She wants us to both claim him 50/50. I’m ok with this, but I have always prepared my own taxes using online programs so this creates a whole can of worms for me. Can we do this? and How?

  191. Andrea on Thu, 3rd Jan 2013 4:31 pm
  192. Hi, if anyone can answer this I would really appreciate it. I had my 2 nephews for 3 months during the summer and then they moved in with me and their father in Oct. Can I claim my nephews on my taxes? Thanks

  193. HELP!!! on Fri, 4th Jan 2013 12:10 pm
  194. I signed form 8332 for my ex(never married) to be able to claim our child every other year. I tried to explain to him that he is NOT allowed to claim the EIC or HOH BUT he does anyway. How do I alert the IRS? She is only with him ONE night a week and every other weekend. She lives with me and goes to school in MY zone.
    He thinks because our drawn up lawyer paperwork states he gets all exempts etc on his years that he is allowed to claim EIC and HOH..he lives with his mother and shouldnt be claiming HOH anyway even though he works. I just want to be able to rightfully claim EIC every year with no issues and not have to jump through hoops because of it. Any advice that doesn’t require a lawyer?!?!?! I would rather go through IRS if possible…thanks!

  195. Ashley on Fri, 4th Jan 2013 10:01 pm
  196. Hi, last year I was denied claiming my son because his father who at the time had not seen him in over 8 months had claimed him… (I’ve never taken him to child support) it has been close to 2 years that he has not seen him now… Never did my son see any help with that money. I went to the IRS office and reported it a few months ago.. My question to you is, will he be audited? Will I be able to claim my son this year? Thanks in advance.

  197. Admin Roberg on Sat, 5th Jan 2013 7:18 pm
  198. Hi Jim,
    That’s an excellent question. Technically, the boys are allowed to be claimed by the foster parents as they are legally entitled to the deduction. The split exemption would not apply in this case.
    Since the children were placed into foster care by a qualifed agency–the foster parents really have the right to claim everything. The split exemption rule is only for when the actual parents of the children are splitting an exemption. Sorry.

  199. Admin Roberg on Sat, 5th Jan 2013 7:34 pm
  200. Hi Kimberly,
    You and your mom can’t split your brother 50/50. It’s one or the other. The split exemption is illegal for you.
    Technically, whoever had your brother the longest should claim him. If you had him an equal amount of time, whoever makes the most should claim him.
    If you and your Mom have a good relationship, you should both do your taxes to see which person would benefit the most by claiming your brother. Have that person claim him, and then split the refund between yourselves. Of course, only people that trust each other should ever do this.

  201. Admin Roberg on Sat, 5th Jan 2013 8:37 pm
  202. Hi Andrea,
    The boys lived with you for almost 6 months, but it sounds like they didn’t live with you for over 6 months so you probably can’t. What about their father, how long did they live with him? And what about the mother?


  203. Thomas on Sun, 6th Jan 2013 1:37 am
  204. Hello, I got divorced in 2004. My ex wife got custody and we agreed to have it in the papers for me to claim our two kids until they are 18. There has never been a issue with this.. I guess this year they bumped the EIC to three children and now she would like to claim one of our kids.. I really didn’t have a problem with this, and today while talking she said she heard I can still claim both and she can claim them for the EIC and head of house hold.. I’m pretty sure I understand in your posting I can claim them for the exceptions correct? And also I wouldn’t claim head of house hold then.. Or do I claim head of house hold for my son and just the exception for my daughter.. Thanks for your advice

  205. J Houchens on Sun, 6th Jan 2013 2:41 pm
  206. My ex-husband wants me to claim both of our children on my taxes this year because his tax return is going to be garnished. It is in our divorce decree that he claims one and I claim one. However he was just recently released from pirson so he has never claimed them before so It would really help me out to claim both since I am used to getting a lot back. However, I’m afraid I could get in trouble for it later. Especially if he regrets this decision. What should I do?

  207. Admin Roberg on Sun, 6th Jan 2013 4:31 pm
  208. @ HELP!
    You’re in the right. Yes, you’re the one entitled to EIC and HOH. You’ll probably have a problem with a delay of your refund, but you’re in the right. When you file your tax return claiming EIC and HOH, it does notify the IRS.
    The IRS is aware of these problems and they are trying to correct it. (We’ll see if it gets any better, but they are trying.) I expect your refund to take 75 days–that’s what the IRS says will happen now when there’s a conflict in claiming exemptions.
    You do have the right to claim your child. You may have to go through hoops, but you shouldn’t need a lawyer. Good luck.

  209. Admin Roberg on Sun, 6th Jan 2013 4:59 pm
  210. Hi Ashley,
    I have a question, you say you were denied–do you mean that your return was rejected? The reason I ask, is you should have all the credits–EIC, HOH, exemption, and child tax credit I’m guessing that the IRS told you that.
    Now I want you to claim your son this year. Your return might get rejected again because I’m guessing that your ex will also claim him. But–if he does, you just mail your tax return in and claim your child. There’ll be a fight, but you are in the right. Be strong. You refund will be delayed, but it is yours. Go for it.

  211. Admin Roberg on Sun, 6th Jan 2013 8:46 pm
  212. Hi Thomas,
    So your wife has custody of all three children and you get to claim the exemptions for two of them. So you get the exemptions and the child tax credit, she can claim the EIC for all three. You’ve got it.

  213. Admin Roberg on Sun, 6th Jan 2013 9:20 pm
  214. @J Houchens,
    I’m guessing that the children both live with you since your ex husband was in prison. So you already have the EIC and the Head of Household designation with you. The only thing your ex husband would be able to claim would be the exemption which includes the child tax credit.
    So, to protect yourself, have your ex sign a statement that says he is allowing you to claim the exemption for your other child as well.

  215. Yvonne on Mon, 7th Jan 2013 11:56 am
  216. Hi, thanks for the info…I’ve talked to several tax consultants and no one wants to hear me out about splitting it the way you described. I have a son and his father and I never married nor do we live together, however, we have remained good friends and he never has a problem with who claims our son, we always split the return in the end. Since no one wants to hear me out I wanted to attempt to do this on my own. I studied business and took extra tax classes so I’m familiar with a lot but I don’t work in the tax field so I know there’s still a lot I’m missing. This would be such a great solution for both of us to maximize our return since we split mostly every and we both earn about the same amount. Any tips about me attempting this maneuver- I would greatly appreciate!

  217. Admin Roberg on Mon, 7th Jan 2013 9:10 pm
  218. Hi Yvonne,
    So whoever has custody claims the EIC and head of household. The other one gets the dependency exemption and the child tax credit.
    So, the one who has custody signs a form 8332 and gives it to the other one. Let’s say you have custody, he doesn’t.
    You sign the 8332. You list your son as the reason you claim HOH and EIC but you do not claim the dependency exemption and the child tax credit. (Usually there are check boxes in the input section of the dependent screen.)
    You boyfriend puts your son down as a dependent, but checks the boxes, “not elibible for EIC or HOH.”
    That’s basically it. Good luck.

  219. Elizabeth on Tue, 8th Jan 2013 1:36 pm
  220. Hello,
    I have a question. My ex husband and I have a post decree that states I claim our daughter on even years and he will claim her on odd year. Well last march 2012 he was behind in child support by almost a year so he said while we were on the phone with a court mediator that I could claim her that year (2011) because he was so far behind. He then asked the mediator if I had to call clearing house to tell them he let me claim her on his year and she said no because if he didnt give money directly to them for CS than its looked at as a gift. He then asked me if I would call them and tell them he let me claim her for his year amd I stil have not done so yet ( he is almost 10,000 behind) so we are not on good terms. Now since tax season is here he is telling me that he is going to tell the IRS that I claimed her his year if I dont call the clearing house and tell them I Claimed her on his year and to take it off of what he owes in back child supprt, he is saying I would then owe 3500 for claiming her in 2011 but isnt the child tax credit only $1,000?? Also She has lived ONLY with me since April 2009, he has not seen her since then. So I am the custodial parent in this case. I dont know here he is coming up with 3,500 but even if for soem reason they make pay back the CTC it should only be $1000, he is wanting the EIC I got as well Im guessing- but he cant claim that since he is the non custodial parent, right?? Im just very upset by his actions bc he is so greeedy and only cares about money. Will this affect me claiming her for 2012, it is my year?? Will affect me if he files before I do?? He hasnt worked in over a year thats all I know. I just want to see what I need to do, because I feel like he is trying to take me for what I have.

  221. Carol on Wed, 9th Jan 2013 3:52 pm
  222. Sorry — another question about which spouse in a divorce situation can claim the exemption for their minor son.

    The divorce decree and custody order did not address taxes. The custody order set out a schedule of alternating weeks, with the child transferred every Friday. The order named two weeks’ vacation time for each parent (father the last two weeks of June; mother the first two weeks of July). Holidays other than Christmas were to alternate (on odd numbered years, mom gets spring break and Thanksgiving; dad gets them on even numbered years). Christmas is split with the child going to one house from the time school gets out until 2pm Christmas day, at which point he is transferred to the other house until the night before school resumes.

    The custody order clearly states that each year the alternating weekly calendar gets laid out (stating which parent’s week begins each Friday) and then the vacation and holiday schedules are laid on top of that schedule. Whoever’s day it is when the vacation or holiday is over, gets the child starting that day and continuing with the regular weekly schedule. So for example, if the father has the child for spring break, and at the end of spring break that Sunday night is during what would be the father’s regular week, he would keep the child through the following Friday, even though he had already had him for a week.

    The child support calculation form listed the percent of time to each parent as 50/50.

    For the first five years after the divorce, the father, who had the higher AGI, claimed the exemption for the minor son. He did not claim the child tax credit, because in order to get that credit the claiming parent must have had the child a majority of time – at least 51%. During these years the mother never attempted to claim the child and never challenged the father’s claiming him.

    A year ago, the mother told the father that she was going to start claiming the child, and even though he told her that he would, as allowed by tax law, continue to do so, she did claim him on her 2011 return. The father’s ereturn was declined; his accountant filed a paper return, and he received his refund. Now they are facing an audit.

    The mother claims that because she had the minor child for holidays in 2011, she had him for more overnights, and therefore she is entitled to the exemption for 2011. The father claims that because the custody order decreed a 50/50 split, as noted in the support calculation, AND in the design of the custody calendar, which lays out the alternating weeks evenly with the holidays overlaying, that the effective split is 50/50. There is an example in an IRS bulletin about a child going to camp for three weeks, and the IRS says that the parents should just split that time but assume that camp is an extra thing on top of, but not amending, the base custody schedule.

    Who is correct here? What would you advise in advance of an audit? By definition, since there are 365 days in a year, unless the parents spend one night in the same place with the child, SOMEONE is always going to have one more night than the other, even if the child alternates homes every day. Since that’s the case, it seems that the fact of odd numbered nights in the year means that since someone would always win if the number of nights alone always trumped, the IRS wouldn’t need a plan for a tiebreaker.

    But in fact they have further guidance about what to do in the case of a really even split. The fact that they have a ‘tiebreaker’ which says that in the case of 50/50 the exemption goes to the parent with the higher AGI itself shows that they conceive of situations that are honestly 50/50, even though numerically that can’t be possible.

    One more piece of this — I just spoke with the IRS helpline and the woman there said that if the father provided more than half of support for the child, that also makes the tiebreaker go to him. I thought I read in IRS guidelines that the amount of support is no longer a criteria.


  223. Admin Roberg on Wed, 9th Jan 2013 8:31 pm
  224. Hi Elizabeth,

    It does sound to me like your ex-husband is trying to take you for a ride. The child tax credit might be the only thing you lose if you lose anything. I think the $3500 would be the exemption for claiming your daughter, but that’s not the dollar amount of the tax, that’s the amount that you would reduce your taxable income by. So if you’re in the 15% tax bracket, that’s only $525. It’s not the money that he would get.

    Hold your head up and and I fight him. Just file your taxes the right way, which is you claiming your child this year. I wouldn’t worry about the IRS. You might want to check on the rules with the clearing house and your court order, but I think you’re going to be okay with the IRS.

    One thing–if he does try to claim, your refund could be delayed by 75 days–just a heads up.

  225. Admin Roberg on Wed, 9th Jan 2013 9:21 pm
  226. Hi Carol,
    The divorce decree custory order outlining the days the child spends with the parents is—pardon me for saying this—a piece of trash. Sorry.
    The truth is, most families don’t go by that. The IRS knows nobody goes by that. So, it’s not going to help.
    So you’re going to have to prove where the child really was–not what the decree says.
    So–which parent had the child more nights? That’s the first criteria. So if one parent can prove one more night–that parent wins.

    The bit about equal number of nights–that’s when a child lives with both parents for the entire year, but in January they split up and in February they file their return, hence the child lived with both parents for 365 days. (Or you can make up a scenario about leap year.)

    So, forget all the other years, forget the divorce decree and the child custody order. Where was the child? That parent will be the one who earns the exemption.

  227. NeedHelp on Fri, 11th Jan 2013 12:54 am
  228. I am divorced with joint custody of three children. My divorce states I claim the children on odd years their father claims them on even years, making this his year, however, he did not work at all for 2012. My ex husbands girlfriend whom he lives with claimed My children on her own taxes. She has no relation to the children because she is not married to their father. Can she legally claim them, or do I have the right because My ex husband cant? His girlfriend is telling me I will owe the IRS if I try to claim them. I have also kept a log of when the children were with me and when they were with him and I had them for one more night than he did for the entire year. Do I have the right to claim my children?

  229. Michael Siebert on Fri, 11th Jan 2013 5:29 pm
  230. NeedHelp,

    His girlfriend cannot claim them. And her saying that you will owe the IRS if you try to claim them is a preposterous.

    I’m assuming you are the custodial parent—the parent with whom the child resides for the greater number of nights during the calendar year. You should be able to claim your child for the earned income credit, head of household status, and the dependent care credit. I don’t see why you’d have to do a Form 8332.

    You should file your return claiming your kids. Because if she does it, when you mail yours in, it will flag both of them. Since she is illegally claiming the kids, it can only help your case.

  231. Anesa on Fri, 11th Jan 2013 6:01 pm
  232. My fathers son and I have never been married and we are not together . My son lives with me and sees his father every other week Thursday thru Monday .. Is he able to claim him on taxes for the days he has him ?

  233. Michael Siebert on Fri, 11th Jan 2013 7:23 pm
  234. Anesa,

    You are the custodial parent-the parent with whom the child resides for the greater number of nights during the calendar year. He is not able to claim him. But that doesn’t mean he won’t try to. Also, keep track of the nights you have your son on a calendar.

  235. Kimberly on Fri, 11th Jan 2013 9:38 pm
  236. Ok you prob answered this somewhere up there but i just felt it would be easier to just ask myself.
    My situation is a little different I think. My ex-husband and i had an agreement in our divorce that stated he would claim one child and I would claim the other. he is supposed to pay $400/mo for child support which he is always behind and right now is 3 months behind. He only sees the kids like once a week. They hardly ever spend the night with him. I don’t feel that it is fair for him to get to claim the one child when he doesn’t really do anything, except sometimes give child support. he seems to love his kids and acts like a good parent, but when it comes to money…..well you know….
    So can i legally still claim both of them even though our divorce agreement says he claims one and i claim the other? Thanks, kimberly

  237. Admin Roberg on Sat, 12th Jan 2013 9:36 am
  238. Kimberly on Sat, 12th Jan 2013 10:36 pm
  239. Thank you! Very helpful!!!

  240. Alley on Tue, 15th Jan 2013 7:17 pm
  241. Hi. So here is my story. I hope that i can get some help. When my ex husband and i were divorced we were living in the same state. we have joint custody with a court order that he has to pay me 50 dollars a month for 2 kids and each of us getting to claim 1 child at tax time. 6 months after our divorce he gave me consent to move out of state with both of our children. since my move (1 and a half years ago) the state we were divorced in doesnt enforce the court order child support since i moved from that state. my question is can i now legally claim both kids on my taxes since he hasnt paid any child support and since the children have not lived with him at all all year? Thanks Alley

  242. Admin Roberg on Wed, 16th Jan 2013 8:28 pm
  243. Hi Alley,
    Here’s the thing-what does the court order say? And what’s the date on it? Clearly you get to claim the EIC and head of household on both children because they live with you.
    Read this post about court ordered exemptions to see if you still have to let him claim the exemptions or not: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

  244. J on Thu, 17th Jan 2013 3:39 pm
  245. My husband and his sons mother are trying to file taxes. The court order states that the father shall have the right to claim the minor child as a dependent for income tax purposes for all years that Mother’s annual income is below $15000.00. In the event Mother’s income exceeds 15000.00, mother shall have the right to claim the minor child as a dependent for income tax purposes for even numbered tax years and father shall have the right to claim the minor child as a dependent for income tax purposes for odd-numbered tax years. Each of the parties shall execute all documents necessary to effectuate the terms of this income tax dependency provision.

    The parents have legal joint custody with the primary residence being with mom.

    So, my question is mom made less than $15000.00 is she able to claim the child at all on her taxes or only dad? She says that she can also claim him. Is this corrent?

  246. Admin Roberg on Thu, 17th Jan 2013 8:01 pm
  247. Hi J–
    Since the primary custody is with the mother, she is allowed to claim the EIC and the head of household designation. But, since she earned less than $15,000 then your husband will be claiming the exemption and the child tax credit.

    At least that’s what’s supposed to happen.

  248. Autumn on Fri, 18th Jan 2013 11:07 am
  249. I lived with my parents from April till December of 2012, in April I gave my parents guardianship of my son through the courts my son lived with me from January till March 30th in another state. Since I lived with my son the whole year but did a guardianship agreement with my parents who receive social security can I claim my son on my taxes since me and my parents both file separate tax returns and my son did live with my son

  250. jennifer on Sat, 19th Jan 2013 1:34 pm
  251. Ok so I have custody of my son but stays with my mother. My mother has given me the right to claim him the last two years and now I’m wondering If she has been claiming him too. What will the outcome be and If were both have been claiming him what’s the worst that will happen? Oh and I’ve been giving her half the last two years. Cash no checks or etc. And we never wrote out anything any kind of agreement. And on top of it all me and my mom don’t really get along. So its time for me to do my taxes and I need to know what to do. Please help

  252. Jan Roberg on Sat, 19th Jan 2013 8:01 pm
  253. Hi Autumn,
    My head is spinning! You gave guardianship to your parents and that was through the courts right? So if your parents decided to fight you on this they are the legal guardians of your child, right?

    But you are also the mom, and you do live with your child, right?

    So you technically meet the relationship, age, residency and joint return tests. (At least I’m guessing that your child is not married and filing a joint tax return.)

    So, I think you’re okay. But I would make sure that your parents are okay with it also. In a tiebreaker, generally the parent wins, but since you gave up guardianship–if your parents are going to fight you, you might have a problem. I’m not sure which way the IRS would lean on this one in a fight.

  254. Linda on Sat, 19th Jan 2013 9:28 pm
  255. Since 2011 our 34 yr old daughter lives with us (parents) did not wk for half of 2011 n the full year 2012.our grandson was born in June 2012. She does recd food stamp assistance and wic for baby. Can we claim grandson n my daughter.

  256. Jan Roberg on Sat, 19th Jan 2013 9:31 pm
  257. Hi Jennifer,
    First, you can’t split an exemption with your mother. Just thought I’d mention that since you posted on this page.
    How old are you? You say your mother gave you permission to claim your son. You’re the parent. Are you under 18?
    If you both claimed your son, eventually you’d get a letter from the IRS and would have to sort things out.
    If you and your mom don’t get along, why are you living there? Is she supporting you? If she’s supporting you, then you probably need to work with her about this. If you’re an adult and can afford to support your child on your own–then maybe it’s time to move.
    Now, you’re the parent, what’s the best thing for your child? Do that. That might mean sucking it up and working it out with your mom. Do what’s best for your kid.

  258. Linda on Sat, 19th Jan 2013 9:34 pm
  259. Forgot to mention the father does sometimes provide help by buying my grandson a bassinet, diapers,

  260. Jan Roberg on Sat, 19th Jan 2013 9:43 pm
  261. Hi Linda,
    It looks like you should be able to claim your daughter and her child as dependents on your tax return. My question to you would be: what about the father? Where does he fit into all this? If he’s in the picture at all, it could be a problem for you in claiming the grandson.

  262. Jan Roberg on Sat, 19th Jan 2013 9:51 pm
  263. @Linda,
    Oops, guess I should read the whole post. So he bought a bassinet and some diapers? Okay, I was being snarky. I’m guessing that the father does not live with you and your daughter and that he does not really support the child outside of a few incidentals.

    But here’s the thing–he does have a right to claim the baby as a dependent–so, you might want to keep that in mind. Should he? Well, it doesn’t seem like he’s supporting the child. But the child lives with a parent, and he’s the other parent.

    You have a legal right to claim the child, but so does he. It’s time to talk to him.

  264. jennifer on Sun, 20th Jan 2013 10:28 am
  265. I don’t live with my mom I have my own home and I’m 27. I’m trying to work with my caseworkers and counslors to get my son. And I didn’t give her guardianship. She took it to court so He could get enrolled into school. She hasn’t had an income in the last two years other than the state helping her and me giving her money Every two weeks and half of Everyone income tax in the last year. Bout a year ago I was living with my mother and she kicked me out because the government found I was living with her, and by law beings that I’m his biological mother they were going to start giving me his medical card ,foodstamps, and check every month. So If I claim him this year with me having an income what will happend If she claims him too with her not having an income?

  266. Jan Roberg on Sun, 20th Jan 2013 8:11 pm
  267. Jennifer,
    you don’t live with your son. You can’t claim him if you don’t live with him. You can’t split an exemption because he does not live with a parent. You mother has legal guardianship through the court. I’m sorry, you don’t win this one.

  268. Johanna Ryan on Mon, 21st Jan 2013 7:44 pm
  269. Pretty simple question I think…. My ex-husband I and alternate years that we claim our son as a dependent. This is his year to claim our son. I am the custodial parent. Am I allowed to deduct child care expenses that I have paid in 2012? Thank you!

  270. Jan Roberg on Mon, 21st Jan 2013 8:34 pm
  271. Hi Johanna,
    Excellent question! The custodial parent is the one that can claim the child care credit so that’s you!

  272. Amy N. on Tue, 22nd Jan 2013 5:15 pm
  273. Okay, here is my situation and question. My ex boyfriend and I have a daughter in common. I took him to court for child support and he is ordered to.pay it, however he is also $9K in the hole with back support. The judge ordered that he gets to claim our daughter every other year. This is his year to file, however she lives with me, I pay all childcare expenses, and I am the custodial parent. We would qualify to split up the taxes, true? If so, what should my first step be? If not, what should I do? It just doesn’t make sense that he claims all of it whn she lives with me and he pays support but he’s so far behind. ANY and ALL info would help, desperate for answers.

  274. Michael Siebert on Tue, 22nd Jan 2013 11:31 pm
  275. Amy,

    First, I would consult an attorney before you go against the judge orders. You can seek to modify the order if you have good reason. Since he is so backed up in child support, it may not be the wisest decision for him to take you to court.

    Only the noncustodial parent can claim the child for purposes of the dependency exemption ($3,800 for 2012) and the Child Tax Credit. Since you are the custodial parent, you are still entitled to the HoH filing status, earned income credit, credit for child and dependent care expenses, or the childcare exclusion.

  276. Jan Roberg on Wed, 23rd Jan 2013 9:08 pm
  277. Hey Mike,
    I’m going to disagree with you a little bit here about Amy. The custodial parent can claim a dependency exemption and child tax credit when they are not splitting the exemption.

    Here’s the thing–Amy gets the head of household and EIC no matter what. And this is the year that she signs the 8332 over to her ex so that he can claim the dependency exemption and the child tax credit. If the ex qualifies for a refund–the state will probably take the refund and it will go towards paying the back child support. (Depends upon your state and the rules but that’s what happens in many places.) But Amy won’t see that money right away–it tends to sit in limbo for months in case there’s any other claim to it.

    Now, Amy may want to check with an attorney, but if her decree is from 2009 or later, the IRS won’t allow her ex to claim the dependency exemption or CTC with form 8332. So Amy–you could not sign the form and keep the exemption and CTC for yourself. BUT–realize that the judge could come back at you. If you do that–I’d toss that extra money in the bank ($1,000 for the CTC and–depending on your tax bracket, anywhere from 0 to $950 on the exemption). This way if the judge makes you lose the exemption–you can pay it back. I’m just tossing out options. It’s risky–because you do have a court order. But maybe your ex would go for it if you take that amount off of what he owes. I don’t know if you’re friendly enough to negotiate together.

    Just adding my two cents worth.

  278. Amy N on Thu, 24th Jan 2013 10:20 am
  279. Jan and MIchael,

    thank you so much for your input. I now have another situation. I read my court order and it states that my ex CANNOT claim my daughter if he is behind and still in arrears. He is over $9K in arrears, which means he CANNOT claim her at all! I have already filed my taxes without claiming our daughter. I’m afraid to amend since it’s going to take so long to get the return. Who else can claim our daughter? Anybody that lived with us? Or am I going to have to bite the bullet and amend my taxes?

  280. Michael Siebert on Thu, 24th Jan 2013 11:49 am
  281. Amy,

    The IRS isn’t even accepting returns until January 30th. However, preparers are allowed to stockpile them-meaning they can do the return but not e-file it yet. How did you get your taxes prepared? You may be able to catch it before it is accepted.

  282. Tricia on Thu, 24th Jan 2013 3:02 pm
  283. Situation:
    My husbands divorce papers state the following:
    IRS INCOME TAX EXEMPTION: The party granted primary residential responsibilty of the minor child shall have the benefit of any tax exemption for the child.
    Question: His daughter is now 20 years old in college and used our tax returns for her financial aid paperwork and her legal residence on her drivers license is our address.
    Does this give us the right to claim her over her mother since she is no longer living with her mother and hasnt for over 6 months and her mothers address is not her legal address.
    Her mother says she will fight us over this so I am just curious what our rights are.
    The frustrating part of this is she got more financial aid because we make less and her mother is taking the deduction for that!!

  284. Nikki on Fri, 25th Jan 2013 1:39 am
  285. My ex and I (never been married) . I was unemployed 2012 due to having a baby and medical complications. The baby father wants to claim the baby as head of household and I not sure if he can. We lived with him for 4 months and then 3 months she live with me last year. She is 8 months now and lives with me. I know I cant claimed the baby this year but next year I want to claim her. Will I have problems claiming her next year or will the irs come after me for documents as far as where has the baby been living. I read there is a form 8332 that I need to fill out but I don’t want the father to have my social security number I don’t trust him with my social security number because he is always losing things. Is it possible that I can turn the paper separate? I am just not comfortable giving up my information I don’t want my identity to be stolen.

  286. Nikki on Fri, 25th Jan 2013 1:45 am
  287. Hi I forgot to add we do not have a court order but he does pay child support of 500.00 dollars a month. He lives in another state but he believes he should claim the baby because he has rights and he pays child support.

  288. Lynn on Fri, 25th Jan 2013 8:58 pm
  289. Ok I am confused on who claims what on taxes. Heres my story, I adopted 2 chuldren through Foster Care, but before they came to me they lived in another foster home for 6 1/2 months and then with me for 3 1/2 moths before adoption was finalized. Foster mom wants to claim them and says that I can still claim Adoption Tax Credit. But everything I keep reading says their SS# can’t be claimed by 2 different people. I have called several different tax prepares and they all say I claim all credits and the adoption tax credit. Is this True? I don’t want to take away anything that might be rightfully hers to claim, but at the same time don’t want to make it where I can’t claim the Adoption Credit. Can you please Help me??

  290. Jan Roberg on Fri, 25th Jan 2013 10:10 pm
  291. Amy,
    If you can’t catch your return (and from what I’m hearing from folks, you won’t be able to) you must amend! Girlfriend–we’re talking a lot of money here. What crazy thing would keep you from fixing it?

    Do not let anybody else claim your daughter. That’s tax fraud. Yes, if you amend your return, you’ll probably have to wait for 16 weeks to get that money. But you went and filed without your daughter anyway–so you’re getting what you thought you deserved so the extra money is just icing on the cake.

    So–Amend the return. Claim your daughter. Take the money and do something smart with it. Open a bank account and keep the money in there just to use on your daughter.

    Don’t even think about letting anybody else claim your child.

  292. Jan Roberg on Sat, 26th Jan 2013 10:12 pm
  293. Hi Tricia,
    I can’t completely answer you question for you, but I’ve got a few observations:

    1. the parent that claims the exemption is the one that gets the college tax credit. There is no law about this, but really the parent that pays the tuition should be the one to claim the exemption–that would only be fair. But–that’s my opinion, that’s not the law.

    2. You say the daughter doesn’t live with her mother–but where does she live? If she’s at college, it still counts as her living with her parents–it’s an allowed abscence.

    3. So–does your husband’s daughter live with you? Or is she living at college? Because that’s pretty much the key to what you can do.

    4. Here’s a post about court orders and the IRS: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    5. One last thing–I worked on an EIC audit where the daughter claimed a different address than her father (who was being audited for claiming EIC). That was the cause of the audit–the daughter listing a different address so…just letting you know about that.

  294. Jan Roberg on Sat, 26th Jan 2013 10:30 pm
  295. Hi Nikki,

    So let me be nosy. You and your ex split up, right? So is he a creepy ex or are you working together for what’s best for the baby? Really think about this before you do anything. Okay? Are you listening with both ears? (I guess reading with both eyes? It’s not the same but I want you to really understand me, okay?

    If you ex is a “good guy” and working for the best for the baby–then let him claim the baby for head of household and EIC and the exemption. Why? Because he can use the refund for the baby and you don’t have any money. Now, normally the child has to live with a parent for over 6 months to claim head of household–but she wasn’t born for the whole year–so the IRS makes an exception for that.

    Personally, I would go with him to a professional and be there while he files his taxes. Then have the refund split between the two of you–so that you get part of the refund he’s getting for your daughter–using the form 8888. Don’t leave until the tax pro e-files that return and it can’t be changed.

    If you don’t want to do that, you may sign the 8332 form and give him the exemption. I’ve heard a lot of women say they are afraid to give their social security numbers to their ex’s. I would sign the 8332 but only give the last four digits of my social security number. This may not fly–but there’s some court cases about that so give it a try. What your ex needs is the 8332 or something close, I think using that last 4 digits should become accepted practice in the future.

  296. Jan Roberg on Sat, 26th Jan 2013 10:32 pm
  297. Hey Nikki,
    Just saw your other post. If he’s living in another state, he can’t claim EIC. Just do the 8332 for the exemption.

  298. Jan Roberg on Sun, 27th Jan 2013 11:50 am
  299. Hey Lynn,
    I’m going to do some follow up research on this but I think you can let the other foster parent claim the exemptions etc and you still claim the adoption tax credit. You see, you’re claiming the adoption credit–not the exemption–so they don’t cross each other in the computer system.
    I’m going to do a little follow up research (I’m writing this from home on a Sunday, I need my office books and stuff) but I’m thinking it’s going to work.
    Here’s some information about claiming the adoption credit that you’ll be needing though: http://www.irs.gov/uac/Adoptive-Parents:-Don%E2%80%99t-Delay-Your-Adoption-Credit-Refund

    You’ll have to mail in your tax return and the processing will be slow. I’ll double check on my answer and post something tomorrow though.

  300. Amy N. on Mon, 28th Jan 2013 11:42 am
  301. Michael, you can file your taxes on turbotax and send them in. You have to wait untul the 30th to get ACCEPTED, but my taxes are done and complete. I have to amend because they’re already shipped off. You may need some schooling in the tax area, the information you provide isn’t so accurate. You’re scaring me, lol. Thank you, Jan! Appreciate your help!!!!

  302. Dana on Tue, 29th Jan 2013 3:58 am
  303. Been seperated moved out with my 4yr old
    Since July 1 2012 was a stay at home mom and couldn’t find a job til Nov. Haven’t made a lot of money was filing a joint return I didn’t know anything about tax laws my husband does so I told him I don’t mind filing together I just need advice I would like to talk to my lawyer or call IRS so I don’t do anything wrong and it comes back on me. My husband is very mean all I wanted was advice and not from him he will not file jointly says I had my chance all because I said I wanted advice before we file. He makes a lot more than I do I only have a part time job take care of our son most of time he pays child support everymonth. I don’t know anything about taxes he has done them every year.what am I entitled to claim and what is he entitled to. There is no reasoning with him all he does is call terrible names when I try to talk to him about this. He also says he is filing without me today.

  304. Jan Roberg on Tue, 29th Jan 2013 3:23 pm
  305. Hi Lynn,
    I’m back. Here’s the scoop–

    1. You do not have to claim the exemption to claim the child tax credit.

    2. Foster mom can claim all the EIC, head of household, the exemption and the child tax credit. That’s her right as the parent with the child for the longer period of time.

    3. If she wants to: Foster mom may (does not have to) she may sign an 8332 form to allow you to claim the exemption and the child tax credit to you as the “non-custodial parent”.

    Now–normally the 8332 is only for separated and divorced parents. But your situation is different so for you and her–because you are both parents a custodial and a non-custodial parent–you would be allowed to do that.

    Anybody else reading this–this is for Lynn and the foster mom only–don’t go granting 8332’s to Aunt Agnes or what have you. We’re talking custodial and non-custodial parents–which is what Lynn and the foster mom are.

  306. Jill on Tue, 29th Jan 2013 4:36 pm
  307. I read in an earlier response that families who live together, even if they are not married, cannot split the exemption. I was wondering what the irs considers “living together”. What are unmarried parents who have always owned and/or rented seperately but stay most nights together in one or the others house considered? Our addresses and finances are different, but would splitting the exemption actually be cheating in our case? Thanks for your time.

  308. Jan Roberg on Tue, 29th Jan 2013 8:38 pm
  309. Hi Dana,
    First and foremost–your safety and the safety of your child is more important. Don’t file with your ex–he sounds like a — well, mean person.

    So, I’m guessing he filed a tax return and claimed both you and your child already. But I would be concerned if he’s done anything illegal financially.

    I’d like for you to get some professional help. I realize that you don’t have any money but you can get free tax help. http://www.irs.gov/Individuals/Find-a-Location-for-Free-Tax-Prep

    You have rights. Don’t let your ex railroad you.

  310. kati on Wed, 30th Jan 2013 9:11 am
  311. I signed the form 8332 and released the child exemption to my ex, however I am the custodial parent as he is with me for 7 months out of the year. My ex pays the daycare expense of about 3200 a year. I am head of household but do not pay for daycare. He plans on claiming the child care on his taxes, will this be allowed?

  312. Tricia on Wed, 30th Jan 2013 11:14 am
  313. Thank you…Here are some clarifications to your questions to see if we can claim her legally?

    1. the parent that claims the exemption is the one that gets the college tax credit. There is no law about this, but really the parent that pays the tuition should be the one to claim the exemption–that would only be fair. But–that’s my opinion, that’s not the law.
    *****Neither parent paid tuition. She has grants and scholarships that cover her expenses.

    2. You say the daughter doesn’t live with her mother–but where does she live? If she’s at college, it still counts as her living with her parents–it’s an allowed abscence.
    ****She lives at college.

    3. So–does your husband’s daughter live with you? Or is she living at college? Because that’s pretty much the key to what you can do.
    *****She lives at college. Her address on her college documents is ours, her address on her fafsa is ours and her address on her dl is ours but she lives in an apt at college.
    But their divorce document states that the mother gets to claim the “minor” child. She is no longer a minor child.

  314. Jan Roberg on Wed, 30th Jan 2013 8:29 pm
  315. Hi Jill,
    Technically, you are not living together as you have two addresses.

  316. Justine on Wed, 30th Jan 2013 8:54 pm
  317. Hi, Your site is great! Just a quick question. My sons father currently has a lien on his taxes for child support, he keeps asking to claim our son for the greater refund. He says he was told he could claim EIC, which from your site I do not believe to be true. If he tries wouldn’t it look weird that he has a lien for child support but is trying to claim the child? Thanks for your help!

  318. Justine on Wed, 30th Jan 2013 9:06 pm
  319. Btw, the lien for child support is for our son.

  320. Kris T. on Wed, 30th Jan 2013 10:42 pm
  321. Hi Jan,

    Thank you for all your helpful responses.

    MY JOD says for tax purposes we are to split our two minor (16 years) children every year until they are adults. However, last summer I took my ex back to court to amend the child support order as he was not taking them for his agreed upon times (we have 50/50 custody), they lived with him less than two months and the court referee found in my favor and raised support and asked him to try to make amends with his children to have them for more over nights (he took them for 2 overnights total after that). Now, even though the children lived with me for well more than most of the year he claims he is still going to claim one on his taxes this year. Is this legal in Michigan?

    Thank you in advance for any insight you can provide in this matter.

  322. Mary on Thu, 31st Jan 2013 8:56 am
  323. Hi,
    My son has shared 50 50 custody with 2 children. In the divorce agreement it states that each parent claims one child as an dependent – the same every year. My question is who can take the child care credit – each parent for only one child or the does the parent with the higher AGI claim child care expenses for both and if so is this only what he paid?

  324. KRISTY on Thu, 31st Jan 2013 11:17 am
  325. My minor daughter and her six month old baby live with my husband and me. The baby’s father buys diapers, wipes and formula about 80% of the time but does not pay any other support and has never been to court here in Tennessee to legitimize the parentage of the baby. Legally, he has no rights to the baby but we welcome him anytime he comes to visit and even let the baby go to visit his family’s house on Sundays. My husband and I make good money and pay lots of taxes. The baby’s dad was told by his mother that he could claim the child and get the EIC and get back $3,000.00. He decided he wanted to buy a car with the money. When my husband and I found out that he intended to claim the baby, we confronted him. We assured him that it is not his place to claim the child but ours. He and his mother insist that we are wrong and evil for trying to take money away from him. We do not qualify for EIC but we did earn the deduction which I feel is our right. He and his family are very angry with us and our daughter and informed her that he will claim their son anyway and she won’t get a dime of it. We offered to give him $500.00 or the $1,500.00 we would get back for the deduction. He balked and said “No, why should I agree to that when I can get back $3,000.?” Who is correct and why? Thanks!!

  326. kelley michael on Thu, 31st Jan 2013 11:20 am
  327. Hi i live with my girlfriend now for 3 years. We have 3 kids. Can i claim head of house hold and claim two kids while she files single and claims the 3rd? and get the credits?

  328. Michael Siebert on Thu, 31st Jan 2013 1:39 pm
  329. Kati,
    It will not be allowed. If you use the Form 8332, it only gives him the right to the exemption ($3,800) in 2012 and the Child Tax Credit. You still keep your head of household filing status, earned income credit, and dependent care expenses.

  330. kelley michael on Thu, 31st Jan 2013 2:00 pm
  331. would it be better for me to claim all three kids and girlfriend as dependants then?

  332. kelley michael on Thu, 31st Jan 2013 2:02 pm
  333. and she file single

  334. Jan Roberg on Thu, 31st Jan 2013 8:37 pm
  335. Tricia,
    It sounds like you win. You have the location and that’s the important part. The child is no longer a minor.

  336. Justine on Thu, 31st Jan 2013 8:52 pm
  337. Hi, Your site is great! Just a quick question. My sons father currently has a lien on his taxes for child support, he keeps asking to claim our son for the greater refund. He says he was told he could claim EIC, which from your site I do not believe to be true. If he tries wouldn’t it look weird that he has a lien for child support but is trying to claim the child? Thanks for your help! The lien on his taxes is for back child support for my son.

  338. Jan Roberg on Thu, 31st Jan 2013 9:24 pm
  339. Hey Justine,
    I’m sorry but your ex is being sneaky. He’s trying to pay your back child support with the tax money that is rightfully yours to begin with.

    Tell him NO DICE!

    Besides–you’re right, he doesn’t qualify for EIC.

  340. Jan Roberg on Thu, 31st Jan 2013 9:31 pm
  341. Hi Kris T–
    I’m not a lawyer so I can’t tell you about Michigan law. But–for IRS purposes, you have custody of the children and you have the right to claim them on your tax return.

    Now–your JOD gives him the right to claim one child–but he only gets the exemption–not EIC or the head of household filing status. Those rights belong to you.

  342. Jan Roberg on Thu, 31st Jan 2013 9:54 pm
  343. Hi Mary,
    If he really has 50-50 and they split each child–then he can claim the child care credit for the child he claims only.

  344. penny on Fri, 1st Feb 2013 7:46 am
  345. Hi, I have a delimma.My ex husband and I have been divorced for amost 3 years.It says in the parenting plan that I claim my daughter on taxes and he claims my son.We each do not pay child support and we pretty much split the costs. We have joint custody, I am primary over my daughter, he is primary over my son. My daughter turned 18 aug of 2012, she and I had had an argument prior to that, so she went to stay with her dad. However, I was still paying her lunch, school expenses, medical bills ect.my ex has went and claimed her on his taxes without consulting me at all.he said because she was resdiing with him for. Ore than 6 months, even tho we have a custody agreement saying I claim her and I was still paying her expenses that he can claim her.what do I do?

  346. Mere Eama Hon on Fri, 1st Feb 2013 11:49 am
  347. Okay I have a question if someone has joint custody and they have it in the papers she gets to file th kids on odd years he gets to on even years and since it is her year even if she isnt filling would he still not be able to file them on his taxes??

  348. Lashae on Fri, 1st Feb 2013 1:15 pm
  349. Hi,
    I have 2 children by a man. We split up in mid 2012 and have always carried 1 dependent during the year for our taxes. We are pretty cool about everything and he normally gets the kids every 4 days unless something comes up and of course they are with me. I live alone and run my own household however he lives with his mom. There are no court orders for child support or custody, we just work it out. He always makes more money than me and im trying to find the best way to maximize my return. Of course i am the primary caregiver of them both but trying to be fair i said he can carry one while i carry the other. Is it best that i just take EIC for them both and he gets the dependency and CTC? Or should we just each carry one? I am really trying to be fair about this tax thing with him but i feel like I do most of the caregiving and work anyway. Im a little confused as to how the dependecy tax and CTC work in peoples favors.

  350. Lashae on Fri, 1st Feb 2013 1:19 pm
  351. BTW…
    Last year I somehow put them both on my return stating that 1 lived with me full time and 1 part time (6 months). Ive never heard of that but it went through and he did the same but they questioned him. And somehow i still got a small credit for that. Im afraid to do it again because i dont want to get audited but was that correct or even possible?

    Thank you for your time and any information you can give me on this matter.

  352. Justine on Fri, 1st Feb 2013 8:33 pm
  353. Thanks! I’m worried he is going to try to! Do you know if something like that would flag the system?

  354. Jan Roberg on Fri, 1st Feb 2013 9:08 pm
  355. Hi Kristy,
    It’s against the law to claim EIC for a child that you don’t live with. A visit on Sundays does not make a person a custodial parent. You’re in the right. Why? Because it’s the law.

    Here’s a link to the EITC assistant on the IRS website. If your grandchild’s father were to answer the questions honestly, he’s see that he’s not entitled to EIC.

  356. Jan Roberg on Fri, 1st Feb 2013 9:14 pm
  357. Hi Kelley Michael,
    If you are the father of the children–then yes you could claim 2 and she claim one. If you’re not the father, then you wouldn’t be able to claim EIC on the kids so it would change things.
    I’m assuming that you two are both the parents of all three children. In that case, it makes sense to run a few scenarios–claim 3 and 0, 2 and 1, 1 and 2 — you get what I mean, right. Do whatever gives you the biggest joint refund and spend the extra money on the kids.
    Whichever one of you makes the most money should claim head of household and the one with the lower income should claim single.

  358. Jan Roberg on Fri, 1st Feb 2013 10:34 pm
  359. Hey Penny,
    Technically, you should get the exemption even though your daughter moved out because that’s what’s in the written agreement. Your ex will get to claim EIC for her (if he qualifies).
    Now my guess is that he’s going to try to claim the exemption too, but that’s not what your court document says. But, technically you should receive an 8332 from him for you to claim her.
    My guess is that you’re going to get stuck fighting this in court. Good luck.

  360. Jan Roberg on Sat, 2nd Feb 2013 1:01 pm
  361. Hi Mere,
    Okay–let’s say it’s your turn to claim your kid but you’re not going to file. You could allow your ex to claim, even though it isn’t her year, if you both agree to it. There’s always the 8332 form to the non-custodial parent, or just writing something out for the custodial parent.

    That said–I see a lot of people fighting about that later. LOTS OF PEOPLE FIGHTING ABOUT THAT LATER. So think about that before you play games. Get things in writing. And use the money for the child.

  362. Jan Roberg on Sat, 2nd Feb 2013 1:07 pm
  363. Hi Lashae,
    If you two are cool with each other, then go get your taxes done together and do what works out to be the best solution for both of you. Use the money to set up a savings account for your child.

    In the future, because you are the main caregiver, you should claim EIC and head of household and child care credit. You may allow him to claim the exemption and Child tax credit for one or both children if you chose (or if you have a court order.)

    Because you lived together for half of the year, he could claim EIC for the kids if his income is low enough. But if you fought over it, you’d win. But since you get along–you can work together and do what’s best for the children.

  364. Jan Roberg on Sat, 2nd Feb 2013 1:36 pm
  365. Hi Justine,
    If your ex claims the kids it might flag the system, but since this would be the first time, probably not. If you file and get rejected–well then you know what he did and you’re going to have to paper file that return. Good luck.

  366. REX on Sat, 2nd Feb 2013 6:05 pm
  367. HI, I have a 14 year old son, but he is living with his grandma (custodial party) WHO has the guardianship of him now. Am i qualified to claim my son as an exemption for my tax return to get child tax credit or EIC?? Or i have to get a signed paper or any filled form from his grandma to get the permission to claim him as exemption?? or can his grandma claim his as an exemption??

  368. Jan Roberg on Sun, 3rd Feb 2013 1:14 pm
  369. Hi Rex,
    If your son lives with his grandmother, she has custody. She also claims the exemption. Splitting the exemption is only between parents.

  370. carol anne on Mon, 4th Feb 2013 6:08 pm

  372. Jan Roberg on Tue, 5th Feb 2013 8:24 pm
  373. Hi Carol Ane,
    Your ex may try to claim your daughter, but he wouldn’t win the case with the IRS. If he does try, you fight back and paper file.

  374. James on Wed, 6th Feb 2013 2:36 pm
  375. My wife and I are now divorced as of 2/6/2013.

    We have 3 children under 18 and my wife and I separated in July 2012. The children lived with both of us under the same roof until mid-July. Since then, they lived with her. She quickly filed her taxes this year, claiming the children. She refused to file taxes with me even though I am the bread winner. What should I do?

  376. Alex on Wed, 6th Feb 2013 8:16 pm
  377. Hi,, I have a ?
    My daughters mother and i lived together 8 months of the year.. An i payed pretty much everything during that time, but the bills was in her name.. She was working under the table for 2 of those months.. then jobless.. Can i claim EIC?? My daughters mother has had my daughter most of the time since 8-11-12 when we split up.. We havent been to court yet, But i pay her $200 a month..

  378. James on Thu, 7th Feb 2013 9:09 am
  379. Hi Jan,

    I don’t see my recent post so I will try again.

    As of yesterday (2/6/2013) my wife and I are officially divorced. We have 3 children together and have been married 16 years. For the first 15 years she was a stay at home mom and just last year started working. I have been the breadwinner even after she started working. We separated in mid July of 2012. I was the primary supporter for those 7-1/2 months. After the separation, the kids stayed with her solely. I tried talking with her to file our taxes together but she refused and quickly filed her taxes without my knowledge, thus claiming all 3 kids.

    What are my rights? We both should be able to claim them, but she beat me to it? Doesn’t seem fair to me at all.


  380. Selina on Sat, 9th Feb 2013 2:53 pm
  381. Hello, I have a friend that has a daughter and is divorced from the mother. (the mother is NOT re-married) The mother does NOT work and my friend pays for his daughters FULL exspences. His child lives with him 4 1/2 months out of the year. My question is…..Does he automaticlly have the right to claim his daughter for taxes since the ex wife doesn’t work, and he IS the sole financial provider for his daughter? The Ex wife charges him every year to let him claim his daugther even though he pays a large monthly child support and he also buys his daugther what she needs (like heath coverage, back to school clothes and supplies, birthday parties, xmas presents, pays for sports activities etc.) If he would not claim his daughter his ex wife couldn’t either because she doesn’t file a tax return. So I’m thinking she would let someone else claim the daughter that is NOT legeally entitled to do so. Is there any way my friend can claim his daughter for taxes without making a deal with his Ex? (given that fact that she’s not filing her own taxes)

  382. Jan Roberg on Sun, 10th Feb 2013 7:06 pm
  383. Hi James,
    You’re not going to like my answer: apologize. Grovel. Beg.

    I told you you’d hate it.

    Now, you actually have a little bargaining power–she didn’t really live apart from you for the full 6 months–but could you actually prove it? She would have to file as married filing separately which would keep her from getting EIC. Did she even have any income?


    Seriously, what is she gaining by filing separately? Figure that out. Beg to file jointly and then offer to pay her what she got by filing separately. I know–not what you want to hear, but that’s probably the easiest route.

    Now, you could fight it with the IRS–but since the kids were with her longer–she wins.

    So here’s the big question–have you been shady with any of your financial dealings? Because if you have, if she has a smart accountant–she won’t file with you and she shouldn’t. If you’ve always been straight with the IRS, you might have a chance.

  384. Jan Roberg on Sun, 10th Feb 2013 7:08 pm
  385. Hi Alex,
    You may be able to claim EIC, but if you have a fight she will win. What you want to do is work together with the mother to see what works best for the three of you. If she’s willing to cooperate, then together you can do what’s best for your child. But if you fight, she wins.

  386. Jan Roberg on Sun, 10th Feb 2013 7:13 pm
  387. Selina,
    The custodial parent holds all the cards. The non-custodial parent may only claim an exemption if the custodial parent allows it or it’s decreed by the courts. Generally the custodial parent signs a form 8332. It is illegal for a non-custodial parent to claim EIC. Just thought you should let your friend know that.

  388. Jim on Mon, 11th Feb 2013 9:39 pm
  389. The thing that is missed is that I need permission from my ex-wife. When the court gives one person the authority and strips it from the parent, the court has told that person that they can behave to their so liking. I even have other women defending myself and my daughter. When one parent pays support to another, the payer should be able to benefit from a taxable stand point. Yes, children benefit but the tax system is in need of change.

  390. Brandy on Wed, 13th Feb 2013 10:08 am
  391. I was wondering if I could claim My expenses for driving to pick up my son every other weekend. He lives over two and a half hours away, and I drive further then his dad, needless to say it is very expensive in gas. I am self employed and already have to claim my mileage. Don’t get me wrong I am not trying to do something illegal at all. That is not my intention. I was just wondering if there was some kind of right off for excessive expense for visitation? I know child support considers it when deciding how much you will pay. I want to thank you so much in advance for taking the time to answer my question.

  392. Jan Roberg on Thu, 14th Feb 2013 9:07 pm
  393. Hi Jim,
    I agree. They system is broken. Sadly, I don’t know how to fix it.

  394. Chris on Fri, 15th Feb 2013 11:47 am
  395. Hi Jan, A followup question to my earlier one on the other blog. My income is too much to take advantage of the Child Tax Credit but I do not phase out for the exemption. My ex-wife on the other had has a very low income so the tax credit would help her out. I am the primary parent as our children live with me about 95% of the time. Can I use all of the exemptions while she uses the tax credits? It would save us combined quite a bit of money. In fact she would benefit from the entire $3,000 worth of credit for our 3 children. While the exemption would lower my taxable income by $3,800 per child.

  396. tdk on Fri, 15th Feb 2013 11:55 am
  397. my boyfriend and his ex were married and have a divorce decree and he only gets his son every other weekend for right now until he goes to court for split custody. he filed his son on his taxes recently and i asked him if he was sure she hadnt filed him already and he said they had an agreement that he’d file him on his taxes.So he gets an irs letter saying he owes them money and now they want proof of his head of household and bills showing he has been head of household in year 2011 which is when she and him had an disagreement on their child. So he called her and she denied any agreement and that she did in fact file their son without his knowledge. i know your going to say she has every right but why not let the father know bc id understand then but he has no proof but her word that she did say it was an agreement. so what is he facing now that he’s in this situation bc he’s a great father and didnt know his babys mother already filed them without him knowing?

  398. Gina on Sat, 16th Feb 2013 9:41 pm
  399. Hi Jan if my ex-boyfriend claimed my daughter this year and he let me know but isnt giving me any money can I have him audited? I claimed her last year and didnt give him any money for it although I lived in his home the whole year before we seperated. I said I would give him money but I never did and this year I need some money. He has her four days out of the week, what can I do about it, we never spoke about this in mediation either.

  400. Jan Roberg on Sun, 17th Feb 2013 4:27 pm
  401. Sorry Brandy,
    There is no write off on the mileage for picking up your kids.

  402. Jan Roberg on Sun, 17th Feb 2013 4:30 pm
  403. Hi TDK,
    So your boyfriend claimed his child for head of household even though his child doesn’t live with him. Why should his ex tell him she claimed the child–that would be obvious. Sorry, he gets no sympathy.
    He’ll wind up having to pay back the refund and pay penalties and interest.

  404. Jan Roberg on Sun, 17th Feb 2013 4:34 pm
  405. Hi Gina,
    Let me rephrase your question for you:
    “I cheated my child’s father out of his refund last year and now this year, he took his rightful claim and I want to cause him trouble by getting him audited, even though he’s innocent of any wrongdoing.”

    Gina–that’s what I’m hearing when I read your question. Is that really what you want to be asking? I hope not.

  406. Alicia Brown on Mon, 18th Feb 2013 1:17 am
  407. I have a question. I have guardianship of my 3 year old nephew. He lived with me for 6 months in 2012 and in June, 2012 he has been living with my sister, because of some health issues I
    was going through. I claimed him as a dependent and the child care tax on my tax return, my sister is wanting to claim him for EIC, I am agreeable to that as long as its legal. Are we able to do that?

  408. Rachel on Tue, 19th Feb 2013 4:30 pm
  409. Hi, I have a few questions about splitting exemption. My son’s father and I (never married and long broken up) have a court order from January 2011 and the dependency exemption clause states “For so long as the maternal grandfather provides health insurance for the minor child, Mother shall be entitled to the dependency exemption. Once the maternal grandfather does not provide the health insurance for the minor child, the Father shall be entitled to the dependency exemption during the first year in which the maternal grandfather does not provide such insurance, and the parties shall alternate the exemption thereafter. Both parties waive any and all right to claim the child as a dependency exemption except as stated above. Both parties will execute whatever documents are necessary to effectuate this provision.”

    The reason we did this, was I lived at home with my parents for the first 3 years of my son’s life, and my father needed to claim my son to keep him on his insurance, which was excellent.

    My first question is this, I moved out on my own at the end of May 2012, and my father continued to cover my son’s health insurance through the end of the year (2012), and therefore claimed my son as well. This year, we have put my son under his father’s insurance plan, as my parents can no longer claim my son since we have moved out. Could I have been claiming anything on my taxes for my son for the past three years that I was living at home? I assumed not, since my parents claimed him and we lived with them. Can I claim anything on this years tax return, since I have been moved out since May 2012, even though my parents claimed him in 2012? I have always paid for and provided child care, food, clothing, etc, I just couldn’t afford to move out on my own while I was finishing school.

    My second question is looking toward the future. Legally, my son’s father and I have “joint physical and legal custody” but he sees his father every other weekend and various extended “vacation” visitations throughout the year. Next tax season, for 2013, I see his father making the mistake of claiming things he shouldn’t and I want to be clear who should claim what before then. I have read in previous posts things about head of household and other things, that can be claimed regardless of who has the exemption that year. I guess I am not familiar with what those things are, what I am eligible for, and what I potentially could have received in past years as well. Any input at all is appreciated. Thanks!

  410. Chris on Wed, 20th Feb 2013 9:42 am
  411. Hi Jan, not sure if you missed my question above on Feb15th at 11:47AM but here it is again:

    Hi Jan, A followup question to my earlier one on the other blog. My income is too much to take advantage of the Child Tax Credit but I do not phase out for the exemption. My ex-wife on the other had has a very low income so the tax credit would help her out. I am the primary parent as our children live with me about 95% of the time. Can I use all of the exemptions while she uses the tax credits? It would save us combined quite a bit of money. In fact she would benefit from the entire $3,000 worth of credit for our 3 children. While the exemption would lower my taxable income by $3,800 per child.

    Thank you,

  412. AJ on Wed, 20th Feb 2013 10:16 am
  413. Jan,

    Great info. Thank you! I seem to have a good understanding of the divorced parents with the 50/50 time tax rules. We are divorced for over 5 years now. We have 2 children, I’m the custodial parent of both. Up to this point we “split” the children between us for tax purposes. This year, my ex’s income is too high for EITC for our daughter and we agreed for him to keep our daughter as dependent, but I’d like to claim her under the “non-dependent EIC child”. Our older son lives with me full time, and I claim him as dependent, which qualifies me to claim our younger for EITC. My question: how do we go about it (especially number of months my daughter lived with me) so we still get what we are entitled to without getting in trouble with IRS?

    Thank you,


  414. Babanding N on Fri, 22nd Feb 2013 7:52 pm
  415. I pay child support to my wife (we have been legally separated since May 2009) and added to my child support payment is 56% of day care cost for my daughter. I know that child support cannot be claimed on tax return but can I claim the daycare expense part. My daughter lives with the mother.

  416. mark on Sat, 23rd Feb 2013 6:38 am
  417. I have 50/50 custody but mom will not work with me or give anything that would benefit me on my taxes. I was wondering in California if there’s a joint custody deduction that I could utilize?

  418. chris on Sat, 23rd Feb 2013 2:38 pm
  419. I need help me and my wife are going through a divorce and when it came time for the taxes she already took and spent it all. We went to file together because she moved out in July and I have the kids half the week and she does I pick them up from school and have them untill six or seven every night and get them every Thursday, Friday, and Saturday. They told us at one place we were only getting back like $4500 and we was going to go get a second apinion. The next day she went done the taxes claimed both our girls head of house hold and single instead of married filing seperatly and then when I had a day off and asked her if she was ready to go do the taxes thats when she told me and left me high and dry. She told me we would split her check b/c mine is only $1200 back now the extra I pay in and we would split my check so its even. I found out she cashed the check and has spent all $8700 except $800 and told me I am out of luck. What can I do please help me.

  420. Angie Rivera on Sat, 23rd Feb 2013 5:41 pm
  421. i’m allowed eic but it’s not my year to claim tax exemption how do i go about this? I got rejected on my taxes and It’s saying my dependent was claimed on my ex’s taxes and the social security number can’t be used twice. He gets tax exemption but i get earned income credit because my daughter lives with me. How do i fill this out on my taxes getting eic but not exemption?

  422. ZULY on Mon, 25th Feb 2013 4:08 pm


  424. kris on Tue, 26th Feb 2013 3:37 pm
  425. my ex and i hve an agreement that even years he claims child as a dependent and odd years i claim child as a dependent. I have full custody of child and child resides with me. my ex filed taxes this year before me and filed for the earned income tax even though the child resided with me the whole year and he only has visitation every other weekend. how do i do my taxes and do i get to rihtfully claim the eic for our child?


  426. Lance Harper on Wed, 27th Feb 2013 8:11 am
  427. Hello. Simple and short question. In my coirt decree it states that I get to claim my son everyother year. The last year I claimed him I had to have a written form signed by his mom saying I could. Why is that and is there anyway around having to have her signature. Pkus all I got was the 1000$ child credit. But the court order ckearly states I get to claim him every other year?

  428. Melody C. on Fri, 1st Mar 2013 10:09 am
  429. Hi Jan,
    When my ex-husband and I divorced it was stated in our decree that he gets to claim our younger son (provided the child support is current) and I get to claim our older son every year. I am the custodial parent. My question is this: Our younger son wil turn 18 this year on June 30th (exactly 1/2 way through the year) and I’m not sure which of us should be able to claim him as a dependent on our taxes next year. My ex hasn’t contributed anything other than his court ordered child support and he has to carry insurance until my son is 18. He has supervised visits (4 hours per month). My son will be starting college in the fall and all loans, etc. will be taken care of by me so obviously I want to be able to claim him next year on my taxes due to the tuition credit. There is no way my ex and I can work together on any of this. Again, since his birthday is June 30th I have no clue who will get to claim him. If his birthday were a day or two different either way I’d know but I’m not sure since his birthday is exactly 1/2 through the year. Thanks so much!!

  430. Jan Roberg on Sun, 3rd Mar 2013 3:31 pm
  431. Hi AJ,
    I think you want to read this post: http://robergtaxsolutions.com/?s=split+exemption
    That should answer your question of how to do it.

  432. Jan Roberg on Sun, 3rd Mar 2013 3:38 pm
  433. Hi Chris,
    You’re out of luck. Well, not exactly–technically, since she moved out in July, you weren’t apart for a full 6 months so she technically should be claiming head of household.
    What you could do–and this isn’t nice–nor do I think it’s the best thing for your family–remember you’ve got two kids to take care of. But, you could file as married filing separate and claim the girls yourself. Then you can make the IRS a part of your little family drama.
    Now here’s the thing–
    1. The IRS hates doing that.
    2. What will be proven is that the kids were with her more and she should claim them, but
    3. She’ll only get to claim Married filing separate and she’ll lose the EIC because you were together for part of the last 6 months of the year.
    4. So when youre divorce actually goes through, you’ll be hit with even more child support then you will already be hit with.

    So yes, there’s something you can do–but I’m not sure you really want to go there. Sorry.

  434. Jan Roberg on Sun, 3rd Mar 2013 3:39 pm
  435. Hi Angie,
    How to claim EIC when ex gets the exemption? Read this post: http://robergtaxsolutions.com/?s=split+exemption
    That gives you the mechanics of doing it.

  436. Jan Roberg on Sun, 3rd Mar 2013 3:44 pm
  437. Hey Zuly,
    You can claim as many children as you have on your tax return. People think there’s a limit but there isn’t. Now you may only claim three for EIC, but if you have 20 kids, you may claim 20 exemptions if you needed to.

    Now, you need to go take back your children! Paper file a return and claim those kids of yours. Don’t let your relatives abuse you like that. If you are a working mom, then the EIC is for you to help you raise your children.

    If you need it, you can get free tax help from one of the VITA organizations. You have rigths. Good luck.

  438. Jan Roberg on Sun, 3rd Mar 2013 3:52 pm
  439. Hi Lance,
    If your divorce decree was before 2009, you can just attach copies of your decree to the return. Here’s a post about that: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/comment-page-4/#comment-10535

    Otherwise, you need the 8332 form.

    You don’t have custody so you don’t get the EIC–that gives you the child tax credit and that’s worth $1000. You also receive the exemption, that reduces your taxable income by $3800. The tax savings varies depending upon your tax bracket. If you’re in the 25% bracket, you save $950. If you’re in a lower bracket, it’s worth less.

  440. Jan Roberg on Sun, 3rd Mar 2013 3:56 pm
  441. Hi Melody,
    Lots of people have trouble with that. Me too. So the decree says that your husband gets to claim your son until he is 18 or including 18? Re read the documents.
    I’m inclined to have you claim him since you’ll be paying the tuition. Be remember, on a tax return, the child’s age is his age on December 31–so that might give you your answer there.

  442. Jan Roberg on Sun, 3rd Mar 2013 4:42 pm
  443. Hi Babanding,
    Only the parent that the child lives with may claim the child care credit. Sorry.

  444. Jan Roberg on Sun, 3rd Mar 2013 4:44 pm
  445. Hi Mark,
    I don’t know of any California joint custody deduction. I’d as a California preparer, maybe there is but I just haven’t heard of it. It certainly wouldn’t help with the federal.

  446. Rachel on Tue, 5th Mar 2013 9:35 am
  447. Hi Jan,

    Just wondering if you missed my question. I will repost:

    Hi, I have a few questions about splitting exemption. My son’s father and I (never married and long broken up) have a court order from January 2011 and the dependency exemption clause states “For so long as the maternal grandfather provides health insurance for the minor child, Mother shall be entitled to the dependency exemption. Once the maternal grandfather does not provide the health insurance for the minor child, the Father shall be entitled to the dependency exemption during the first year in which the maternal grandfather does not provide such insurance, and the parties shall alternate the exemption thereafter. Both parties waive any and all right to claim the child as a dependency exemption except as stated above. Both parties will execute whatever documents are necessary to effectuate this provision.”

    The reason we did this, was I lived at home with my parents for the first 3 years of my son’s life, and my father needed to claim my son to keep him on his insurance, which was excellent.

    My first question is this, I moved out on my own at the end of May 2012, and my father continued to cover my son’s health insurance through the end of the year (2012), and therefore claimed my son as well. This year, we have put my son under his father’s insurance plan, as my parents can no longer claim my son since we have moved out. Could I have been claiming anything on my taxes for my son for the past three years that I was living at home? I assumed not, since my parents claimed him and we lived with them. Can I claim anything on this years tax return, since I have been moved out since May 2012, even though my parents claimed him in 2012? I have always paid for and provided child care, food, clothing, etc, I just couldn’t afford to move out on my own while I was finishing school.

    My second question is looking toward the future. Legally, my son’s father and I have “joint physical and legal custody” but he sees his father every other weekend and various extended “vacation” visitations throughout the year. Next tax season, for 2013, I see his father making the mistake of claiming things he shouldn’t and I want to be clear who should claim what before then. I have read in previous posts things about head of household and other things, that can be claimed regardless of who has the exemption that year. I guess I am not familiar with what those things are, what I am eligible for, and what I potentially could have received in past years as well. Any input at all is appreciated. Thanks!

  448. Daniel on Tue, 5th Mar 2013 9:59 am
  449. Hi Jan, I think that you may have gotten me mixed up with another Chris, so I am going with Daniel this time.

    Hi Jan, A followup question to my earlier one on the other blog. My income is too much to take advantage of the Child Tax Credit but I do not phase out for the exemption. My ex-wife on the other had has a very low income so the tax credit would help her out. I am the primary parent as our children live with me about 95% of the time. Can I use all of the exemptions while she uses the tax credits? It would save us combined quite a bit of money. In fact she would benefit from the entire $3,000 worth of credit for our 3 children. While the exemption would lower my taxable income by $3,800 per child.

    Thank you,

  450. Jan Roberg on Thu, 7th Mar 2013 8:29 pm
  451. Hi Kris,
    Yes you should be able to claim the EIC. You’ll need to amend your tax return. Yes you can claim EIC even though you let your ex claim the exemption.

  452. Jan Roberg on Thu, 7th Mar 2013 9:01 pm
  453. Hi Daniel,
    Sorry but you can’t split the exemption that way. (You claiming the exemption and your ex claiming the child tax credit.) The IRS rules are very explicit about that–the child tax credit goes with the exemption. Sorry.

  454. Max on Mon, 18th Mar 2013 6:52 am
  455. I was wondering what happens when two parents have split custody and have a court agreement on each claiming a child for taxes. Wat happens when one parent went against that agreement a claimed both? Does this have to be resolved in court or police or the tax place…? Please let me know thank you

  456. Mell on Sun, 31st Mar 2013 4:14 pm
  457. My daughter’s (Which is 6mo.) father and I were never married and hes not on child support, he has given me 220 monthly voluntarily ever since she was born. My daughter has lived with me the entire time and has not spend over nights or weekends, and now he wants half of the tax money. He said its the law that i need to give him half because of what he’s been giving me for her this entire time. Is this true??

  458. monica on Tue, 2nd Apr 2013 1:02 pm
  459. long story short…. 2012 tax return my husband was suppose to claim my step daughter. we had agreed w/ her mom that we wud alternate years to make it easy and fiar. however, when i went to file yesterday the child ssn was already used. her mother is adamnt she didnt claim her. the biolgical mom told me that she listed the childs info on her return but that that dosent mean she was claimed…the irs is telling me if her info was written down then shes been claimed. my main concern is that supposedly no one claimed the child so why is her ssn being rejected from or tax return? by looking at your tax return how can you tell if someone was claimed?

  460. Guber Shnadlog on Sat, 6th Apr 2013 12:23 pm
  461. Hi Roberta, here is some puzzling scenario you may not have heard about, grist for the mill:

    – Parents got divorced with final decree in June 2012.
    – Decree was a “rubber stamp” of an uncontested settlement agreement.
    – For the sake of the children, they continue both residing in the family home
    (They have been sleeping in separate rooms already since 2011.)
    – The implementation of the amicable decree is taking its own pace
    – i.e., the quit claim deed to sign over the home to her was executed only in 2013
    – The custody / parenting plan aims at a true 50/50 shard custody
    – alternate weeks, not a Wednesday-and-every-other-weekend type situation.
    – Their separation agreement allows him the exemptions just in case
    – Rehabilitative maintenance is agreed

    As for the basic tax situation
    – They fully collaborate and agree on tax questions
    – there are 2 biologic children of both (underage, no-one else claims them)
    – he is above the child tax credit phase out
    – he files schedule A
    – she would claim standard deduction
    – neither would be eligible for earned income credit or dependent care credit, etc.

    So, according to the rules,
    – They are divorced because a final decree is in hand.
    – The divorce was not a fake with the intent to avoid taxes and later remarry.
    – Since both parents lived under the same roof, both have the same number of nights for 2012
    – The tie-breaker “highest AGI” makes the him the custodial parent

    Now therefore, they figure it to the maximum common benefit if
    – he claims head of household status
    – he can execute Form 8332 to her to give her the exemption

    Now, trying 5 models, they find:
    #0: he is HOH takes exemption, child tax credit is lost (THIS IS THE DEFAULT BASELINE CHOICE)
    #1: she is HOH takes exemption, higher standard deduction, child tax credit
    – they would claim this based on the house being hers and he being absent for some months
    – so as to cause the nights-count test to fall on her side.
    #2: he is HOH but signs exemption and child tax credit over to her
    #3: they split the kids, each gets one child fully as HOH and exemption and credit (if they can)
    #4: he is HOH takes the exemption but she takes the child tax credit

    The results of their analysis:
    #1 would cost them ~$2,000 morel
    #2 would save them ~$1,000
    #3 would save them ~$1,500
    #4 would save them ~$2,000

    My conclusions so far are firstly that in the big picture, the amount saved by any of the advanced tricks is possibly not worth the headache and hassles and risks of an IRS audit. I think this is particularly true is they were “normal” people who tend to consume most of their tax refunds on discretionary fun or who lose their money by paying back expensive loans (e.g., car loans).

    Still, do you want to comment on any of these edge-case explorations? Especially the 3 main odd points:

    (1) being divorced but staying under one roof so kids have a fairly normal life

    (2) splitting the kids in the middle (a very possible scenario for older kids, say, daughter is more attached to dad and son more attached to mom.)

    (3) separating exemption from child tax credit (they are different boxes on the 1040 form but Form 8332 only speaks about exemption and implying the child tax credit would go with it.

    And how likely do you see any of this triggering an IRS audit?
    – both parents would name the children in 1040 box 6c — that alone might be the audit trigger.
    – so this might rule out the trick of one taking the exemption and the other taking the child tax credit
    – but will filing status HoH suffice without mentioning any of the dependents needed to file HoH on the 1040?

  462. Guber Shnadlog on Sat, 6th Apr 2013 12:25 pm
  463. PS: oops, my apologies!! I’m sorry I got your name wrong Jan.

  464. Guber Shnadlog on Sat, 6th Apr 2013 12:41 pm
  465. One final point of clarification: when I said paying back the car loan, I misspoke. It’s good paying back the expensive loan, but most people seem to be using the tax refunds to continue their addiction to car loans, e.g., using it as down payment for another one of those. Sorry for diluting the tax consideration with my soap box. Though I find it amazing how small the tax savings of such advanced tricks are when compared to the ability to save in daily life by avoiding expensive loans.

    OK, now I shut up.

  466. Guber Shnadlog on Sat, 6th Apr 2013 5:52 pm
  467. Actually, I won’t shut up, because I can answer my own question.

    (1) The whole scheme with alimony falls flat on its face once you stay under one roof, nothing can be declared alimony period. There is an article out there by Fineberg PC, “A household is not a home ‘not members of the same household’…” but it seems that relies on a 1984

    (2) Next, then, for filing HoH, one could split the kids in the middle so both parents could file as HoH each for one child. For instance, dad, with the higher income, that is beyond child tax credit, could book the 17 year old daughter (based on the daughter having stayed one more night at dad’s house), since 17 years anyway disqualifies for child tax credit. Mom would take the younger son, and get the child tax credit.

    (3) This idea of separating exemptions from child tax credit probably won’t fly, will it?

  468. Dean on Thu, 11th Apr 2013 10:42 pm
  469. Hello.
    My wife left in April 2012. She left her son to live with me (my step son) as i lived close to his school. He lived with me the entire year, he is 17. I claimed him as a dependent on my taxes. I use Turbo Tax and answered all of the questions, and they indicated that i could do this. She states she has sought legal advice, and that i had no right to claim him.
    We filed for Divorce in January 2013 but are still legally married.

  470. LILY on Mon, 15th Apr 2013 12:06 am

  472. Brandi on Sun, 28th Apr 2013 1:58 pm
  473. ok i have my daughter way more then her father does i pay for everything she lives with me i take her to the doctors im her soul provider i the one that takes care of her ….but…..her father claimed her with out my permession i called the irs to see what i should do the told me to print a form out from online and send it in i want to know what is that form called and where can i find it

  474. Jan Roberg on Sun, 26th May 2013 5:00 pm
  475. Hi Max,
    You want to know what happens when the court agreement splits custody and each parent is supposed to claim one child but later one parent claims two. What happens.
    The question I have for you is: who has physical custody of the children? Court documents say all sorts of things, but what’s really happening? The IRS will try to determine who really has the children and resolve the case from there.
    Generally, the parent that the children live with will be allowed to be claimed for EIC and head of household purposes. If the court decree allows the none-cutodial parent to claim an exemption, then the custodial parent should sign a form 8332 allowing for that. If a parent is negligent in providing the document, the injured parent may go to court.

  476. lisa on Sun, 30th Jun 2013 10:16 pm
  477. I have been divorced for ten years. My ex and I have two children. our divorce agreement states that my ex can claim my eldest child as a dependent on his tax return and I claim my youngest. My eldest child is going off to college. My ex is unwilling to help pay for tuition. Is he still eligible to claim my son on his tax return and also receive the college tax credit? I am the custodial parent.

  478. Jan Roberg on Mon, 1st Jul 2013 7:52 pm
  479. Hi Lisa,
    Your eldest child will be going to college and your ex claims that exemption–that’s a tough one. The American Opportunity Credit (the college tax credit) goes to the person claiming the dependency exemption.
    But, your ex isn’t paying for college. Now, here’s a thing that may help you–many colleges won’t give the 1098T (that’s the form you need to claim the tax credit) to the parents–they will only give it to the student–so—you may have to involve your child.
    Also, many divorce decrees end at 18–check your paperwork, you may have something on your side there also.
    If he’s allowed to claim your child while in college, you may need to do some re-negotiating with the ex. Maybe let him claim the younger child so you get the college tax credit. But do check the divorce decree to double check what he’s entitled to. Good luck.

  480. Jan Roberg on Sun, 14th Jul 2013 4:05 pm
  481. Hi Mell,
    Your ex says its the law to give him half of what you get on your tax return for your children? He’s lying. End of story.

  482. Jan Roberg on Sun, 14th Jul 2013 4:12 pm
  483. Hi Monica,
    You want to know how to tell if a child was claimed by looking at a tax return. First, as a tax professional, I tell by the notice the IRS sends me when I e-file a tax return. The IRS notice will say “reject” and then there will be a code. That’s how I identify that a child was rejected.
    If you’re looking at someone’s tax return, you would look at the first page where it lists the dependents. It’s up near the top, but below the names of people filing the tax return.
    If you’re checking to see if someone claimed a child for EIC but not for the exemption, then you would look at the EIC form, the child would be listed there.

    But–this is important. If the birth mom really didn’t claim your step child, and you were rejected, then somebody is using your stepchild’s social and that’s fraud. You and the stepmom should work together on this to make sure your mutual child is protected. This is a big deal if she’s telling you the truth, you’ll both want to protect the child.

  484. Jan Roberg on Sun, 14th Jul 2013 4:28 pm
  485. Hey Guber,
    Option 4 is illegal.

    Some preparers would say that option 3 is also not workable, but I think option 3 is good for your case. For many folks, claiming head of household at the same address is a red flag, for you I think it’s a workable solution to your situation and I think you’d win if it came to audit. I have tax friends who say you can never have two HOH at the same address. I disagree, I think your situation is a good example. While I think you’d win that argument for 2 HOHs, it does have a higher chance of being audited. So the question is–do you have any other issues you’d rather not have the IRS look at?

    Option 2 is safe in case you’re worried about an audit.

  486. Jan Roberg on Sun, 14th Jul 2013 4:30 pm
  487. Gee Guber, I should have you as a guest blogger!

  488. Jan Roberg on Sun, 14th Jul 2013 4:33 pm
  489. Hello Dean,
    Your step son lived with you for the entire year. Your wife moved out in April, so you were apart for the last 6 months of the year.

    The child is yours to claim. You win hands down.

  490. Jan Roberg on Sun, 14th Jul 2013 4:36 pm
  491. Hi Lily,
    I bet you needed this answer back on April 15th, sorry I’m so far behind. Your mom can claim your little sisters for EIC, but since there is a court order for the father to claim one on his tax return he can claim her for the exemption. The father can not, I repeat, he CANNOT claim EIC. If he did, your mom can fight that.

  492. Jan Roberg on Sun, 14th Jul 2013 4:38 pm
  493. Hi Brandi,
    I think what the IRS meant was for you to print out your tax return claiming your daughter and mail that in. That’s what they want, your 1040 tax return.

  494. Jan Roberg on Sun, 14th Jul 2013 4:41 pm
  495. Hi Mary R,
    The court order allows your brother to claim the exemption–it is against the law for him to receive EIC. That’s why he only got half of his refund. It sounds like his ex did it right and he got the exemption and the child tax credit, but no EIC. EIC is only for the custodial parent, which is his ex. Sorry.

    (I removed your last name for privacy.)

  496. Maria on Mon, 22nd Jul 2013 10:12 pm
  497. Divorcing now….2 kids (4 and 6). I will have primary custody; Dad will have every other w/e and 1 weeknight. I think I should claim both as exemptions…he wants one. I may significantly more than he does and I think it would make more financial sense for me to have the exemptions. He says his accountant says it will make a ‘big deal’ for him to get at least one. I will earn $95K plus; he is self-employed and seems he claims income of about $40K. Advice?


  498. Jan Roberg on Tue, 23rd Jul 2013 4:40 pm
  499. Hi Maria,
    So it sounds to me like you’re going to be the custodial parent. That means that you get all the benefits of claiming the head of household filing status, not your ex. Your income is too high for EIC. If your ex is clearing $40,000 then EIC won’t help him either–but even if it could, he can’t claim it because he’s not the custodial parent, you are!

    So, if he’s making $40,000, that puts him in the 25% tax bracket. (Maybe even 15% with his deductions, but I’ll use 25%, it’s a better number for him.)
    At the 25% tax bracket, and claiming one child as an exemption, he would reduce his taxable income by $3,800. 3800 times 25% is 950. Add to that the $1000 that she should get for the child tax credit and he gets $1900. That’s it.

    If his income tax bracket is actually 15%, then we’re talking $570 plus the $1000 child tax credit.

    So the question here is–what’s it worth to him? What’s it worth to you?

    At your income, because you get the head of household filing status, you would also be in the 25% tax bracket, so your loss would be equal to his gain.

    I don’t know what the right answer is for you, but at least you’re armed with the numbers.

  500. Jared on Tue, 24th Sep 2013 12:55 pm
  501. If i have my ex sign the 8332 form where i claim the exemption for the children, and my income is low enough for earned income credit could i get that as well as the exemption. even though i could not claim as head of household?

  502. Jan Roberg on Sun, 29th Sep 2013 7:35 pm
  503. Hi Jared,
    No. If your ex signs the 8332 form, it’s basically saying that the children do not live with you, that means you may not claim EIC. Sorry. The only way you can claim EIC is if the children actually live with you for more than half of the year.

  504. Allyson on Fri, 3rd Jan 2014 10:47 am
  505. My ex and I have our 2 children 50/50 and I am the custodial parent. It will be his turn to claim the exemption on one of the children this year. Since I am the custodial parent, it is my understanding that I can still list that child for EIC purposes, (but not as an exemption) but if I indicate that I had him for 6 months of the year, that is not enough time to qualify for EIC. I could round up to 7 months, but then the ex would have to put 5 months on his which wouldn’t be completely accurate. Am I following this correctly?

  506. Jan Roberg on Sat, 4th Jan 2014 3:57 pm
  507. Hi Allyson,
    That is such a good question! I’m glad you asked because I bet lots of people have that problem. If two people share custody 50/50–really you’ve each got the child for 6 months–but in order to claim EIC you need to say 7 months and the other parent can only say 5 months–and that’s not exactly right.

    The IRS gets that. But in order to make the software work, you’re right–say 7 months, have your ex put down 5. That’s something you do to make the software work–and it’s fine.

    As far is the IRS is concerned, the custodial parent is the one who has the child for 6 months and 1 day–but the computer software just doesn’t figure it that way–so use the 7 months. You’re not cheating or doing anything bad or illegal when you do that. It’s expected that you do that–it’s how you tell the computer to process the EIC for your return.

  508. Kacie Hoff on Thu, 23rd Jan 2014 3:35 pm
  509. A judge ordered that the noncustodial parent get to claim our son until the age of 17 as long as he is caught up one everything (child support, medical, etc.) In the order the Form 8332 is never mentioned. Is there still a chance I can claim my son without being in contempt?
    Also how will I get to claim EIC. My husband qualify this year but only if we have 2 qualifing dependents?

  510. Jan Roberg on Thu, 23rd Jan 2014 8:00 pm
  511. Hi Kacie,
    The important thing to remember is that there is a big difference between claiming the exemption and claiming EIC. You ex is the noncustodial parent, right? So he gets the exemption–and along with the exemption is the child tax credit.

    EIC is for the custodial parent. So you get the child not for the exemption, but for EIC and also to claim the head of household filing status.

    I realize that it’s confusing–I went to school for this stuff. I used to teach this stuff in tax class. Trust me–I’m an expert at this stuff and it still makes my head spin. I can imagine what it does to normal people.

    But I’ve got a link that should help explain how it should look on your tax return: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/

    Your court order is for the exemption, not the EIC. (Or at least that’s how it should be.) You want to give your ex the 8332 form–because if he uses the 8332 form, then he can’t claim EIC–it protects you. The 8332 form is telling the IRS that he can only claim the exemption, not EIC so you want to give him one.

    But do check out the other post, it should help. Good luck.

  512. Tammy on Sun, 26th Jan 2014 12:08 pm
  513. My 2 daughters live with me, in my divorce my ex gets to claim one child each year. he makes over 80,000 a yr and does not qualify for the earned income credit.. my question is, he can still claim her as a dependent and i can claim the EIC child care credit right??

  514. Jan Roberg on Sun, 26th Jan 2014 3:12 pm
  515. Tammy, yes, your ex can claim the exemption and you can claim your daughter for EIC and the child care credit. That’s right.

  516. angelica on Sun, 2nd Feb 2014 10:26 am
  517. Ok my husband and I have a question on the laws of student loans and filing your taxes. My step sons mother is in default on her student loans and they have taken her taxes last year and plan to take them this year. She is normally the one who claims him on her taxes but this year he lived with us the entire year and she is going to allow us to claim him. She brought up a good point and we need to know if it’s a good chance that this could happen to my husband and I this year. So my question is, if we claim my step son on our taxes this year can the irs take our taxes this year to pay for her student loans? She says she has seen this happen to couples before.

  518. Jan Roberg on Sun, 2nd Feb 2014 2:52 pm
  519. Hi Angelica,
    I’ve never seen that happen. If your husband has not signed on for his ex-wife’s student loans, then there should be no problem. There is no way the his ex’s student loan problem follows his son–it only follows the ex wife.
    You should not worry about your refund being claimed for her loan.

  520. angelica on Sun, 2nd Feb 2014 8:35 pm
  521. Thank you

  522. Lisa on Sat, 8th Feb 2014 5:48 pm
  523. Hi. My kids have lived entirely with me since June of 2013. I went to file my taxes and they were rejected because my ex claimed them already. I am going to paper file but my question is this… How do I prove they have been with me since June? They’re enrollment at school wasn’t until August, didn’t enroll them in Tricare until that time either. If none of these show I’ve had them since June how do I prove that to the IRS when that time comes? I don’t have a lease, I own the house, I don’t go to church so I can’t have a clergyman to vouch for it, no law enforcement officers know them, etc…. My ex husband isn’t a nice or cooperative person so there’s no trying to work it out with him and he has not paid a penny of child support. Please help as I am waiting to send them in until I know without a doubt that I can prove I am the custodial parent. Any help is greatly appreciated! Thanks!

  524. Lisa on Sun, 9th Feb 2014 7:19 am
  525. I also forgot to mention that my ex lives in another state. Not sure if that helps me or not. Thanks agin.

  526. Jan Roberg on Sun, 9th Feb 2014 3:58 pm
  527. Hi Lisa,
    This is going to sound kind of lame, so forgive me. I don’t know you, I’ve never met you. I’m sure you’re a lovely person, but I can’t vouch for you. Hmmm. I can’t, but I bet you know somebody who can!

    Time to gather your girlfriends. Who do you know that knows what’s going on in your life? A friend, family member, neighbor? What are the circumstances that had the children move in with you in June? Is it something that can be documented?

    Since I don’t know what happened, I can’t help you. But, somebody, somewhere, knows the truth and can back you up. You get to play detective and find those people. Good luck.

  528. Lisa on Mon, 10th Feb 2014 1:01 pm
  529. I do have friends and family that can attest to them being here since June, I just didn’t think that was sufficient in the eyes of the IRS. I assumed it was something that neede to come from an indifferent party. I know I am in the right here, but in the past my ex has proven to be very underhanded so I cannot help but to worry that he will come up with something that negates what I will have (if that makes sense). I’m just so scared of penalties and fees if I’m not found in the right. I appreciate your advice and thank you.

  530. Jan Roberg on Tue, 11th Feb 2014 9:01 pm
  531. Hi Lisa,
    Of course some sort of independent source document is great to have. But when you don’t have it, you use what you’ve got. And believe it or not, the IRS has some experience with sneaky exes. Hold your head up and hold your ground. You know you’re in the right.

    Worst case scenario–you lose. (I don’t think you will but I’m doing the worst case here.) Then you apply for an abatement of penalties on the grounds that you honestly (which is true) believed you were claiming your child correctly. I’m guessing you’d win that. (Not that you need to–I’m still betting on you for claiming you kid in the first place.)

  532. Deseri on Sat, 15th Feb 2014 8:10 pm
  533. Hello, I am wanting clarification on the rules about filing. I am 19 and live with my parents, while attending high school. They intend on claiming me as a dependent on their income tax return. My boyfriend, whom my child spends half the time with filed her on his income tax, as I am not filing due to no income. It seemed most appropriate for him to do so. However, my parents are informing me that he was wrong to do so and in fact fraudulent. They have stated he can and will be prosecuted for it and will pay all that money back, and they will claim my daughter and myself since I technically lived in their home. I am asking if it is legal for him to have claimed her with my permission and do my parents have a legal right to have claimed her or contest this?

  534. Jan Roberg on Sat, 15th Feb 2014 8:31 pm
  535. Hi Deseri,
    You’re in high school. That pretty much shuts down most of the argument right there. Your parents have every right to claim you.

    I would argue that in 99.9% of all cases like yours, your boyfriend couldn’t claim the child. But there are times when he could so lets make sure.

    Does your baby sleep at your boyfriend’s house 50% of the nights or does she come home to sleep with you at night? If she’s not sleeping over at his house for at least 50% of the nights, he cannot claim her.

    Does your boyfriend make enough money to support himself or is he still being supported by his parents? Same thing, he’s got to support himself, his parents can’t be claiming him as a dependent.

    Now think about this. Your parents are supporting you. You and the baby live under their roof. You are not living with the boyfriend, and he is not supporting you. Believe me when I tell you that you are being a financial burden to your parents. (Sorry, but baby’s are expensive.) So unless your boyfriend is working hard and really providing some support for your child- which I doubt or you wouldn’t be living with your parents!

    So, I really think your parents should be claiming the baby that lives in their house, under their roof, with their daughter that is still in high school.

    When your boyfriend makes enough money to put a roof over your head and food on the table–then he can claim the baby. But he’s not doing that yet is he?

  536. Allie on Thu, 6th Mar 2014 9:47 pm
  537. Hello. I am 20 and a stay-at-home mom in Ohio. We are currently living with my dad. My boyfriend ( and father to my child ) is in the military and has been stationed in California for the 2013 year. My question is, is he able to claim our daughter as a dependent? He supports us financially but due to the residency requirement, I am not sure if he will be able to claim her legally. Thanks in advance.

  538. Jan Roberg on Sun, 16th Mar 2014 7:06 am
  539. Hi Allie,
    That’s a really good question. There is an exception to the residency rules if a person is serving in the military overseas–but your boyfriend is in California so he doesn’t qualify as living with your daughter so he wouldn’t qualify for EIC. He could claim the dependency exemption and the child tax credit.

  540. susan b on Thu, 27th Mar 2014 10:43 am
  541. this post has been pretty helpful. my husband and his ex have joint physical and legal custody of their 2 boys. she only works part time and he has a full time job plus a half time job as clergy on the weekends. i referenced your post to help us try and figure out the maximum benefit for everyone to which she cited rule 9.
    “Sometimes a child meets the tests to be a qualifying child of more than one person. However, only one of these persons can actually treat the child as a qualifying child. Only that person can use 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 for dependent care benefits. 6. The EIC.
    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 tax benefits unless he or she has a different qualifying child.”
    i’m wondering who is correct here. she is using a cpa to file and we are trying to file on our own. generally they are very cooperative, but as he is self employed half the year, we really get very anxious about filing our taxes because no one wants to be audited! thank you in advance for your help!

  542. Tina on Sat, 19th Apr 2014 1:26 am
  543. My ex husband and I have shared custody of two children, we have it ruled that he takes one child and I take the other for tax claiming but it wasn’t stated which child goes to who. I have been claiming my son for taxes for the past 2 years and my ex claimed my daughter. This year my efile stated that my ex used my son’s SSN and claimed him. I was told that I can claim my daughter but I still submitted my taxes with my sons SSN because this is how I have been doing it for the past two years, would that make a difference if I have used my son in the past?

  544. Jan Roberg on Sun, 25th May 2014 5:31 pm
  545. Hi Susan B.,
    Your husband’s ex’s CPA is reading page 31 of IRS publication 17. If he would read a little further to page 32, column 1, he would see the special rules regarding the children of divorced or separated parents who live apart.

    Here’s a link to the IRS pub: http://www.irs.gov/pub/irs-pdf/p17.pdf

    I’m right. Not to sound snobby, but I’m really good at this stuff.

  546. Felipe on Sun, 1st Jun 2014 9:39 pm
  547. My sons mother and I have always been separated in good terms, we share custody with her being the primary care, but i give her about 20% of my income to help with any expenses. shes always claimed him because we were scared that by doing this we would be audited since we do this all under a gentlemans agreement and not under court order. My question is, would we qualify to do this legally if both of us agreed on it?

  548. Jan Roberg on Mon, 2nd Jun 2014 3:15 pm
  549. Hi Felipe,
    Yes, you qualify legally to do this. The big requirement here is that you don’t live together and it sounds to me like you don’t. You don’t require a court order or anything like that.

  550. Ely on Wed, 11th Jun 2014 10:26 pm
  551. Hi Jan. I know you have posted a few things on here about Foster Care and the different tax credits and I have tried to read all of them but might of missed this. If a child lives with their parent from Jan 1st – July 1st of a year then goes and stays with a foster parent from July 1st till the following Jan. Who would do what claiming come the new tax season. The child is going into volunteer foster care.

  552. Faheemah A. on Tue, 17th Jun 2014 11:20 am
  553. My ex husband and I divorced in 2008. Divorce decree states ex husband can claim our son for tax exemption purposes every odd year. I was warded custody. Our son see’s his father once a year and doesn’t provide any where near half of our sons financial expenses. My husband has provided for my son for the last 7 years and currently. He and I both feel that because my ex husband doesn’t meet any of the IRS guide lines (other than the Judge saying he can in writing), and we have come into a financial heart-ship (due to some financial responsibilities for my son with no help from his biological dad); my husband should claim my son on his tax return for ALL available credits and exemptions. Will we run into an unfix-able situation. I will deal with the courts if my ex-husband pursues. I’m thinking if I am found in contempt, so will my ex because he does do anything the final judgement requires of him. If he doesn’t comply with the court order, why should I ( in a perfect world).

  554. Cary on Fri, 20th Jun 2014 2:44 pm
  555. Hello! My ex husband claimed our son with EIC for 2013. He does claim him as a dependent, but he lives with me. Instead of talking to him about it (which would be a nightmare), I am reporting it through my tax preparer and letting the IRS deal with him. I have a letter from the school saying he lives with me and goes the that school, but i really dont have anything else. My tax preparer said that our Dr could write a letter , but he said he wouldn’t since it’s not his responsibility. What else can we use as proof? and also what do you think he will be charged with and how long does something like this take? Is there any way he could fight me and win? I am scared of him and his ways, we divorced due to domestic violence and he is a natural in manipulating matters!

  556. Jan Roberg on Sun, 22nd Jun 2014 7:29 am
  557. Hi Cary,
    First, I think you’re smart not to go to your ex about this given his history. Your safety is the most important thing here.

    Now, about your proof. First, you don’t need to send any proof until the IRS asks for it. But they will so you’re smart to get your ducks in a row now.

    I think the school document is the absolute best supporting document you can get, so breathe easy.

    Oh–about your doctor. You don’t need your doctor to write a letter–get a copy of your child’s immunization record. I’d bet any money that it has your address on it. Or–get a copy of one of your doctor’s bills. Or ask for a statement showing what you’ve paid. Any of those would document that you’re taking your child to the doctor.

    But like I said, the school record is your best documentation anyway.

    Good luck. (Not that you need it, you’re doing all the right things anyway!)

  558. Jan Roberg on Sun, 22nd Jun 2014 9:45 am
  559. Hi Faheemah,
    Sorry but I can’t back you up here. We have laws and rules whether we agree with them or not. As my mother would say, “If you see your friend jump off a cliff would you jump too?” So your ex isn’t obeying the rules so you’re just going to disregard a binding legal contract and IRS law too? That doesn’t fly with me.

    That doesn’t mean I don’t feel for your situation. But handle it in an adult and responsible manner. Either go to your ex and say, “Hey, here’s the situation, we need to claim our son this year, let’s work something out…..” Or, if that’s not an option, then go to the court and say, “Hey, we need to change how we claim the exemptions.”

    But saying, “my ex broke the rules so I’m going to break the rules too….” that’s really not the lesson you want to teach your child now is it?

  560. Jan Roberg on Sun, 6th Jul 2014 9:01 am
  561. Hi Ely,
    When you’ve got a situation like that–wow. Here’s the thing: legally–who had the child more days? But reality–who should be claiming?

    1. If you and the parent are working together for the good of the child–then you can discuss between the two of you what to do. Whoever claims the child will put 7 months on the tax return instead of 6.

    2. If you and the parent are not working together–you’re probably going to lose. The IRS will defer to the parent.

    Will you automatically lose? No–so if this is a fight, you may win–but it won’t be easy. You’ll have to prove you had at least one more day than the parent AND that you were a legally court appointed foster parent.

  562. melissa c on Sun, 20th Jul 2014 2:38 pm
  563. Hi,
    I recently went to court to get divorced and I requested to get permission to move out of state with my daughter. My ex proposed me that if he let us go I needed to let him alternate with the income, because he was going to spend money to go see our daughter. Now I have a question I heard that my lawyer that we could alternate with tax deductions and I would always have the right of earned income. What does that mean? Does this really affect with tax returns? another question could I later on take away the right of alternating? Thankyou

  564. melissa C on Mon, 21st Jul 2014 7:39 pm
  565. Hi,
    I recently went to court to get divorced. I just received the final decree dissolution and they want me to sign it if i agree. I requested to move out of the state with my daughter and one of all my ex conditions for me able to move was to alternate income tax returns. One of the questions is it going to affect me? As I saw in the papers he also states that he is going to be given $200 per month in travel expenses in child support. So another question can i fight back my right for income tax returns as he is going to report $200 expenses in child support a month?

  566. Jan Roberg on Sun, 10th Aug 2014 12:36 pm
  567. Hi Tina,
    You always claim your son but now your ex claimed him and you need to claim your daughter instead? You wanted to know if that would be okay. Yes. I have some couples who routinely switch which child to claim. It’s not a problem.

  568. Jan Roberg on Sun, 10th Aug 2014 12:40 pm
  569. Hi Melissa,
    So your divorce decree has you alternate exemptions–that means claiming the exemption and the child tax credit. But you, as the custodial parent will always have the right to claim head of household filing status and EIC (if your income qualifies.)

    You won’t be able to take away the right to claim the exemption without going to court and having that right removed from your ex. As long as he’s being a good parent, why would you want to?

    If he’s not being a good parent, that’s different. Then go to court.

  570. Jan Roberg on Sun, 10th Aug 2014 12:43 pm
  571. Melissa,
    It sounds to me like you will have to pay your ex $200 a month in expenses for him to travel to see your child. You need to talk to your lawyer about that. Not me.

  572. Ely on Wed, 13th Aug 2014 11:03 pm
  573. Hey Jan. I’m actually the parent. My son has gone into the voluntary foster program temporarily. I am still legal guardian and he just lives with the foster family for now while I make sure things are straightened out at home and living situations. court isn’t involved and since he wasn’t taken from me I put him in this program and I can have him back at any time. Just rough times and I wanted to make sure he is in a secure place (son is autistic its why the voluntary program is open to me) Circumstances with work and finance I may loose my living situation and don’t want him to have to go though those rough times. So in a situation like this, (doing this research for me and the family caring for him) is there a way we both can claim him for part of the year or do they as temporary givers claim him or do I claim him. All this is very confusing to me and thank you for your assistance. Its very much appreciated.

  574. Jennifer on Thu, 14th Aug 2014 9:39 am
  575. I have a question that I have not been able to discern from reading the posts above. My husband and his ex wife are currently back in court to settle a dispute about dependency, college expenses, and child support. To be diplomatic his ex is trying to get as much money as she can from this arrangement. The issue at hand:
    1. Daughter is 19, and a sophomore in college, Son is 16.
    2. They have always split custody 50/50.
    3. The original divorce decree gave the daughter as a dependent to the mother and the son to the father.
    4. Dad makes more that mom, her tax returns show an average income of $5,200/yr., dad pays her child support of $587/ month.
    5. Dad is paying college tuition for daughter, but because he cannot claim her as a dependent he does not have the relief of receiving education credits, nor can he claim her education expenses on our tax return.
    6. We have asked the court to award dad her as a dependent while also retaining his son.
    7. Legally they are both our dependents via IRS rules, They live with us 50% of the time, and we support them here in addition to paying 587/mo in child support, and dad makes more money than mom does. We would save more than she does on her taxes by having them, but the court ordered different.

    The judge is concerned with mom losing head of household status credit, etc.
    Additionally she is underemployed by her own choosing and she has virtually no expenses because she lives with her boyfriend. Her subpoenaed bank records show no house/rent, utility, auto, payments being made by her.

    Can we propose to take the daughter as a split exemption so the judge can feel good about her not losing the head of household status? and if so how do we do that?
    thanks so much as this split exemption option is very confusing,

  576. cathy on Mon, 18th Aug 2014 5:26 pm
  577. Hi! I was divorced Feb 2013. Judge said that ex could claim kids until 18. I am disabled & do not file taxes. He & I were to do our 2013 taxes together but he did them without me. He claimed the kids but has not given me my half. I actually requested all of the tax credit because the way the custody worked in 2013 was he saw kids jan 9th(wed) for 3 hrs. MAYBE 4 times that WHOLE YEAR WITH NO SLEEP OVERS until they slept over DEC 22 & 23, 2013. Spent 6 hrs Christmas day & that was that was it. BUT that was the childrens choice but he made no attempts to go out of his way to see his children @ extracurricular or school events either. He also drove past our family home daily to/from work, he lived with his mistress less then 5 miles from his kids, & never called or stopped! So with that said, I felt that I deserved the entire child credit refund! I wanted our CAP to ask IRS to figure out the formula & thats why he filled without me. Plus the fact his income has increased drastically & has not reported it to WVBCSE also has alot to do with it. He also has not paid his 70% medical for kids medical bills. States he doesn’t get them. Funny thing is, neither do I coz of HIPPA! I just get the COLLECTION calls & partial bills on what is owed caused I’m the parent who takes them & he carries the insurance. How do u go back & modify a IRS tax form? Is it the CPA’S fault? Did they need my signature to get the child (s) exemptions? Do I deserve all coz of the fact kids chose not to be with their dad @ his girlfriends home either hours or overnights in 2012? He’s getting married to her & I don’t want to look like the ex who is crazy. Been trying to get him to take care of this for months but my health & my mother’s health has been poor since our move 8months ago. PLuis our children have not adapted well to their many new situations including divorce, his fiancee soon to be step mother & life as teenagers. Any advice would be wonderful.Thank you & I look foward to hearing from you soon.

  578. Jan Roberg on Sun, 24th Aug 2014 7:52 am
  579. Hi Cathy,
    You were divorced in 2013, your ex claimed the kids and he has a legal right to claim the exemptions. You are on disability and have no taxable income. He makes a lot of money, so EIC is not an issue here.

    You’re not married anymore so he has no obligation to split the refund with you. If you claim the kids–which is in violation of your divorce decree- you get nothing anyway. So tell me, what do you want?

    You don’t really have to tell me what you want. You want him to man up and be a responsible parent. I get that. It ain’t gonna happen (that’s why you divorced him, remember? Or something along those lines, right?)

    I’m sorry, but redoing the tax returns aren’t going to help you.

  580. Jan Roberg on Sun, 24th Aug 2014 7:55 am
  581. Hi Jennifer,
    You’ve got a perfect case for the split exemption. You and your husband should claim the dependency exemptions for both children and let the ex claim the head of household status for both children. It maximizes her EIC return and lets your husband claim the college tax credit. It’s a win/win for everyone.

  582. charee on Fri, 9th Jan 2015 9:15 pm
  583. Hello!! this is just what I was looking for..

    So– 2013 Childs father and I went to court and we did a 50/50 split.. I also some how agreed to let him claim him on his taxes on EVEN years. ( 2014) I was never ordered to sign the 8332 Form, however I am also not trying to be in contempt of court. LOL

    Childs father AGI: $37k
    Myself: 20k & around $16k after deductions.

    i saw this split exemption topic and wondered if this would benefit me. I am self employed full time college student & while doing my 2014 taxes, it seems I will actually OWE almost $2000 if I do not claim my son as my dependent.

    I want to see if I am understanding this correctly.

    Since my Childs father has a HIGHER AGI than I he would claim my son as a dependent and receive the exemption and the child tax credit.
    If we did this “Split exemption” I my self, would claim Head of House hold as and the EIC. Is this correct??

    I am super paranoid and he is not really willing to talk to me about this kind of stuff. I am in the midst of buying a house and I was hoping to have something on my return to use for my Down payment, but as it stands with not claiming him at all— I owe the IRS.

    Thank you,
    Impoverished College Momma

  584. Jan Roberg on Sun, 11th Jan 2015 5:51 pm
  585. Hi Charee,
    I wrote this blog post just for you. I don’t know if it will work for you and your ex, but I do this for a couple that sounds kind of like your situation. I hope it helps. http://robergtaxsolutions.com/2015/01/tax-strategy-for-exes-that-get-along/

  586. Kimbery on Wed, 14th Jan 2015 8:44 pm
  587. Hi, I came across this site and I am really glad I did. I was hoping you could help me. Me and my ex husband have a very good relationship. I want to allow him to claim the kids this year as head of household to get the EIC and all other deductions possible so it can help him catch up back child support. I of course will be filing single and not claiming the children at all since I really didn’t work much this year anyways. (I was a full time student) In previous posts I noticed that if I give him a signed 8332 form they will probably not give him the EIC. I’m fine with not signing it, I trust he wont claim them next year. My issue is I know that in order for him to get the EIC he must have had them living with him for half the year, unfortunately they technically haven’t. They have lived with him for a good amount of time though. I don’t mind if he says that they have lived with him for half the year. I do however receive child care assistance that states otherwise. I just want to make sure we wont get in any trouble if I just let him claim everything and I claim nothing. I’m not trying to take advantage just make sure he gets the best return possible because ultimately it benefits my kids and helps my ex get ahead a little more instead of struggling so much with his bills and child support. Thanks in advance.

  588. Melissa on Sat, 17th Jan 2015 7:15 am
  589. my boyfriend & I have a child together, he claims her on his taxes, but I pay for daycare..can I claim the daycare expense on my taxes if he claims her as a dependant?

  590. Jan Roberg on Mon, 19th Jan 2015 8:47 pm
  591. Hi Kimberly,
    One thing to know is that if you’re receiving assistance for the children living with you and you let your ex say that the children live with him, there could be consequences–so you might just want to give him the exemptions and not the EIC. This post might help: http://robergtaxsolutions.com/2015/01/tax-strategy-for-exes-that-get-along/

  592. Jan Roberg on Thu, 22nd Jan 2015 6:31 pm
  593. Hi Melissa,
    No. The daycare credit can only go on the tax return of the person claiming the child as a dependent (or, if you were split up, the person claiming the head of household designation on a split return.)
    If you and your boyfriend live together and he’s claiming the exemption, have him claim the child care credit also.

  594. Phillip M on Mon, 26th Jan 2015 6:13 pm
  595. I have 50/50 joint custody of my children and have them a lot more than court ordered in our divorce agreements I tried to talk to my ex about letting me claim my son and she told me I have no right to because she pays for insurance which was in out divorce agreement and she pays for daycare which I never agreed to do so what should or how can I go about having the right to claim my son I have them about 75% of the time I’m just stumped. She threatened me and said if I want to claim my son I can pay half of his daycare or pay all his insurance

  596. Alex on Fri, 30th Jan 2015 8:46 am
  597. Hello,

    My ex and I were never married. She has our son on her medicaid and she is on governmental assistance. However, since I’ve been keeping a log, I’ve had him for 60 % of the overnight stays. I have a family member watch our son while I go to work on my scheduled days and also on days she worked. Aside from the free healthcare he gets, I pay for the majority of his needs, Diapers, Clothes, Toys, Day Care expenses, etc. She does not want to negotiate any of his tax credit and feels if she is entitled to it because she NEEDS it. She only worked 15-20 hours a week part-time at minimum wage last year. She no longer works and her mother and her moved 75 miles away from me.

    The twist is this. I have a petition for paternity case pending. She had defaulted on responding to it and the final hearing would be coming soon. Is the fact that I’m not his ‘legal’ father yet detrimental to me claiming him since I had him most of the time?

    Thank you so much for your answer!

  598. Otis on Sun, 1st Feb 2015 12:32 pm
  599. Thanks for such a great site!! I hope you may be able to help me out! I have a child and have never been married. When we split up we made a verbal agreement between us, (no custody hearing) that we would split custody 50/50 and claim the child every other year between us!! My question is, that the mom gets insurance thru our state exchange and gets a subsidy for the child! Now with the new ACA I’m not sure I can claim her as a dependent since the child was enrolled through the mothers insurance!?

  600. Jan Roberg on Sun, 1st Feb 2015 2:04 pm
  601. Hi Phillip,
    Ummm–it sounds to me like maybe you should pay half of the daycare or all of the insurance.
    I’m not trying to be a jerk here. But I’m afraid that is must sound that way.

    The bottom line is you and she have some sort of agreement. The person who has custody is the one who pays for the daycare–at least that’s pretty normal. So, if you really have custody of the kids, why is she paying for the daycare? She shouldn’t need daycare if your son is with you, right?

    The bottom line is that the IRS is going to look at where the children sleep at night. How do you prove that? The daycare provider is going to have her address as the primary home. So is the insurance. What have you got? I’m thinking paying for the day care is the way to go. But you won’t be able to claim him this year as you haven’t paid the daycare all year. You’d need to start doing it now to claim him next year. Sorry, I don’t think that’s what you wanted to hear.

  602. Jan Roberg on Sun, 1st Feb 2015 2:11 pm
  603. Hi Alex,
    Since you are filing a paternity suit does that mean there is a question as to whether or not you are the father? Because if you aren’t the real father, then you have no claim on the child’s exemption at all.
    But, I think you mean you are filing suit to keep him–different story.

    Now, a couple of problems. First, since your ex is getting assistance for his healthcare, etc. She needs to claim him as living with her–otherwise she loses those benefits.

    What you could do is split the exemption and you claim the exemption, while she claims head of household and EIC. That would help both of you.

    If you go to battle and try to claim everything, you need to figure out how you’re going to pay for his health insurance, etc. What you gain in tax credit is nothing compared to what you could lose in health insurance benefits. So think carefully–what is best for your son?

  604. Jan Roberg on Sun, 1st Feb 2015 2:13 pm
  605. Hi Otis,
    Excellent question. You can claim your child as an exemption, but your ex claims for head of household. You can honestly state that your child has health insurance. You’re good there. Your ex can still file for the health insurance by having the child for head of household purposes. You’re both good.

  606. Tara W on Mon, 16th Feb 2015 2:24 pm
  607. Hi Jan,

    This website has been extremely helpful, thank you for that!

    I do have a few questions regarding my situation.

    My son’s father and I were never married and we separated 10 months ago. We have joint custody of my son with his primary residence being with me. He spends most of the week with me, so I am the custodial parent (according to the IRS).

    But in our agreement filed within the court, we are required to alternate years claiming our son as a dependent. This first year being separated is his year (my sons father) to claim him.

    I am confused about the possibility of claiming my son on both of our taxes. So he can claim him as a dependent, but I can still claim head of household and the EIC? How would I be able to claim those without listing my son as a dependent?

    I am perfectly fine with him claiming my son because it is within our agreement, but if it is possible for me to still receive some credits I would like to. It doesn’t seem fair to file as a single person when money I receive for childcare expenses (a grant from my school because I am a full-time student) is factored into my income resulting in a lower refund.

    Maybe this would be a better question for my attorney, I am just starting to figure this out. Any information would be helpful!

    Thank you!

  608. Kathy on Mon, 16th Feb 2015 6:57 pm
  609. Hello, I live in MO. I am a full time nursing student graduating May 2015. My daughter is a 2nd year pre-nursing major. My divorce decree says I can claim her in the odd years. I have always honored this.

    Here is my the situation / question.

    I claimed her last year and college tuition that I paid out of pocket. THIS year, her father will claim her. His 1/2 of her tuition is paid from HER Missouri MOST account provided by her grandparents.

    Since he is claiming her as dependent – I can not deduct the tuition, books, and expenses. Is this correct????? If he is claiming her, is he getting MY deduction for CASH out of MY pocket?

    I am almost done with nursing school, and with accelerated program (8 week sessions) I was unable to work this past year and was hoping to get more back on my taxes to help catch up.

    Any ideas??

    Your help is SO appreciated!

  610. Jan Roberg on Sun, 26th Apr 2015 8:37 am
  611. Hi Tara,
    On the 1040 when you claim head of household (box 4) there is a line where you write in the name of your child that you are using for your head of household status. Ideally you are doing this in computer software, but that’s what the return looks like–your child’s name should show up on that line. Also, he’ll show up on the EIC page.
    Have someone prepare your taxes professionally to make sure they’re done correctly. Head of household filing status should also help with your student grant as well.

  612. Jan Roberg on Sun, 26th Apr 2015 8:40 am
  613. Hi Kathy,
    Ahem. The parent claiming the exemption is the one who gets the American Opportunity Tax Credit. Yep that hurts.

    Of course, he may not know about it. You may be able to negotiate it. But yes, that seems to be the most unfair rule of all. And I’m sorry, I don’t have a work around for you.

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