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

IRS rules allow for divorced parents to split a child's exemption

Splitting an exemption is not illegal if you follow the proper rules. Learn how here.

 

 

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.

 

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Here are some links that might help:

EIC questions of any kind:  EITC Assistant

 

How to find free tax preparers:  Free Tax Help

 

How to find your local IRS office:  Find an IRS Office

 

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

  1. 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.

  2. 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?

  3. 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.

  4. 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!
    -Tara

  5. 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!

  6. 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.

  7. 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.

  8. Hi Jan,
    I have a question about the American Opportunity Tax Credit. When you claim this credit you are not allowed to double dip, i.e. claim the credit for expenses paid for with the money from a 529 account. How does it work if the 529 is owned by one ex-spouse, but the other parent ex-spouse is claiming the dependency exemption and the education tax credits? Do the expenses need to be coordinated between the ex-spouses so double dipping does not occur?

    Thank you for your great columns.

  9. How can we claim a child on our taxes if we nave split custody 50 / 50 per divorce decree and the child sleeps the same number of nights at both houses. His fathers and his mothers???

    Who claims the child then?

  10. This is just ridiculous the system is so ass backwards lol!! A mother can claim earned income tax credits and not even work all year, but a father pays child support all year for years ,and keep in mind the government taxes that child support and there saying it’s not a deduction for the father paying child support lmao

  11. Hey, Me & my child’s fatherhave been split up for a year. We have an agreement where we alternate years on who files taxes. My problem is, he only wants to get her about 5 days out the month & the rest she lives with me.. How can I file my child under my taxes the correct way

  12. It states in my divorce decree that my ex can claim one of our two children, however he is also ordered to pay half of their medical bills and he doesn’t so if I claim both kids to get more back can I do that without being in trouble? The little bit extra I get back will be nothing compared to what is owed to medical bills.

  13. I’m the non custodial parent but my child’s mother hasn’t worked all year who is entitled to claim the child under these circumstances?

  14. Hi
    I was a foster parent for my niece. Can I claim her on my tax? It would help mom more with EIC. Is it possible for me to just get expemtion? We would not qualify for EIC anyways. She was with us 6mo plus.

  15. My 8 year old daughters dad and I (never married) have a child custody agreement that orders him to pay child support in which he is in arrears to the tune of almost $5000. There is nothing in our agreement that says anything about filing tax returns. She lives with me over half the time so I am the custodial parent. Even though he doesn’t pay child support regularly, he does pay for her after school care in the amount of $30 a week. I have always claimed our child on my tax returns and also used the child care expenses for a tax credit on my return, to which he has never had a problem with up until now. Now, because I am saying that I am planning to file with the state to try and get him to pay child support, he is saying that I fraudulently used the child care exemption and that he will turn me in to the IRS (he must have tried to use it too, because he is being audited) and I could go to prison. In other words, he is threatening to get me in trouble if I pursue child support. My question is, have I done anything illegal in which I could be in trouble? The child care documents did not have his name on them, only our childs name, and the provider gave the document to me.

  16. Hi Angela,
    First I am required to tell you that I am not an attorney and therefore I cannot give you legal advice. I can, however, give tax advice.

    So first, let me make sure I understand the situation. You are the custodial parent for your child, right? You claim your daughter as an exemption on your tax return, right? And that is perfectly correct from a tax stand point. You also probably claim the head of household filing status (unless you are remarried) right? And that too is the correct filing status for you. And I’m guessing that you’ve got a job and that your daughter needs to be in day care so that you can work, right? So you claimed the child care credit – which also makes sense. Your ex can’t claim the child care credit because he is not the custodial parent!

    So, tell me, what fraud have you committed? What crime is there? Prison! Seriously? No, no, no, no, no! You are the only parent that can legally clam the child care expense deduction.

    No, let’s see, what if you couldn’t – just for arguments sake because quite frankly, you can. But if you couldn’t claim the child care credit – then you would lose how much? $600? The IRS doesn’t consider jail time for anything less than $40,000. So the worst case scenario would be a letter saying to pay back the $600 – but like I said, you should be able to claim the child care credit anyway.

    It sounds to me like your ex is trying to be a bully since you have pursued your child support. (Seems to me you dodged a bullet not marrying this one! Sorry, not really my place to judge but I get angry with bullying tactics.)

    Bottom line, it seems to me you have done nothing wrong.

  17. I have a son who I never married his mom. She is married now and my son is 3. For past yrs her parents have filed him on taxes and she did too on same yr. Now she’s married her husband files him and another child not belonging to him. As well as her parents did so too. So in 2014 she filed him and her family filed him 2015 her and her husband filed him now she has a son who does not belong to her husband again yet filed both on taxes 2016. How can I contact IRS on this matter thank you would like to stay anonomyous please email me with info

  18. Hi D—,
    I changed the name to keep you anonymous, but your question was really good so I wanted it to post. Here’s the thing – your ex and her parents can’t both claim your child on their returns at the same time. The IRS would reject one of the returns. If she’s telling you that they are – they can’t.

    Now, since she is married to her husband, if your child lives with them, then that husband can claim your child on the return. As the legal step-father, he may claim your child on his tax return. And, he can also claim her other child for the same reason.

    This is hard for you because it’s your child – but unfortunately, they’re doing nothing wrong. Now, if your son was living with you and not them – and they were claiming him-that’s a different story. But as long as those kids live with them – they’re within their rights to claim them on their tax return. Sorry, I know that’s not what you wanted to hear.

  19. Good morning,

    Reading these comments are so helpful.
    I have joint custody of my son with my child’s father. I am the custodial parent my son lives with me. His dad also have visitation on every Monday overnight, every other Thursday overnight when it’s not his weekend, and every other weekend and brings him back on Sunday evening. As per court order it says: for so long as the parties are able to claim the child as a defendant on their tax returns, the parties shall rotate each calendar year.
    I know you’re not a lawyer and cannot give legal advice. However, do I qualify to claim him every year he lives with me more, I believe. Should I contact the irs and ask them questions?

  20. Hi Talana,
    There’s a bit of confusion between having “joint custody” as per a divorce decree, and “custodial parent” as far as IRS determinations go. I think you understand the difference. Your son is with you more and you are the custodial parent.

    Technically, since your son lives with you more, as far as the IRS is concerned, you could claim your son every year (at least when he has more time in your home.)

    But – your divorce decree allows your ex to claim your son every other year – so if you claim your son’s dependency exemption during your ex’s year – well then (I’m not a lawyer but I’m pretty sure this is correct) you’d be in contempt of court. So why fight it?

    As the custodial parent, claim the head of household filing status and the child care credit and EIC if you qualify. Let your ex claim the dependency exemption and child tax credit in his years and don’t fight! It will cost you less in legal fees. It will also show your child how grown ups should behave. He’s a post for exes that get along: http://robergtaxsolutions.com/2015/01/tax-strategy-for-exes-that-get-along/

  21. My daughter is 2 years old and her father and I are divorced. I am the custodial parent and make less than $25,000/year. Our decree states that the father can claim our child every year, while I must prepare two tax returns. The first: me filing Single (daughter and I live with my parents so I can’t file HOH) and not claiming our daughter as a dependent but still claiming the Earned Income Credit. The second: me filing Single and claiming our daughter as a dependent. Then he pays me the difference of what I’m “giving up” by not claiming her. This was his idea and at first it seemed fine but now I’m concerned I’ve given up potentially a lot of money. My question for you is, do you immediately see anything unfair about this arrangement?

  22. Hi Rachel,
    If your divorce decree states that he gets to claim her as a dependent – well then he gets to claim her as a dependent. But you are the custodial parent so you do get to claim EIC for her. It sounds to me like you’re allowing him to claim her as living with him – which would give him the head of household filing status (and maybe EIC if his income is low enough.) He shouldn’t be allowed to do that. He isn’t entitled to that – so it’s cheating.
    But let’s say you’re in this together – it’s still cheating, but you’re in it together – he’s not paying you what your missing out on for the EIC – he’s paying you the difference between you claiming her as a dependent and you claiming her just for EIC. So it sounds to me like you’re not even getting the full value of the scam.
    Let me make myself perfectly clear – I do not condone cheating on your taxes. But if you’re going to cheat, then you should be making more money, not less. Maybe I misunderstood what you’re doing in your post. That’s quite possible. But the way I’m reading it, you don’t have a good situation.

  23. Hi and thank you for this post.
    Our divorce decree was not very well written unfortunately, it states that “Mother shall claim the child as her dependent for tax purposes on odd years and may claim head of household. Father shall claim the child as his dependent for tax purposes on even years and may claim head of household”. The decree also states that each person should execute the required IRS documents to allow for the other person to take the exemption every other year. I understand the splitting of exemption and that the person who signs form 8332 gets to claim head of houshold etc. but the problem is the IRS definition of custodial parent as the parent where the child spends most nights. We have joint custody and the child spends one week with me and one week with with the Father throughut the year. Some breaks are split in half. However, due to holidays and special days and other circumstances we will not know where our child will spend the most nights in the year until the end of the year. I don’t want to have to count days every years, and change our chiild’s schedule at the end of the year and beginning of the year to make sure that one of us has more nights every other year and thereby qualify as custodial parent. What is the easist and best way for parents and child to alternate years? To specify in the divorce decree that each parent will be considered the custodial parent every other year and that person claims it all and the other person files as if they don’t have a child. Or can we each sign form 8332 every other year to give to the other person? The problem we run into is that if it’s my turn to sign the form and give to my ex, but our daughter ends up having spent a few more nights at dad’s house that year, then can I still sign the form even though the form should be signed by the custodial parent, which I am not in that case, however the divorce decree states to alternate years? It’s very confusing. Wer are trying to modify the decree to the right languaage and to be compliant with IRS rules and NOT having to count days at the end of every year. Thank yoU!!

  24. Hi!

    My Ex and I went to court last summer and he was ordered half placement and half custody. He is supposed to keep the 2 boys one week off and one week on. He has never done this. All year, my kids have lived with me. They go with him maybe one weekend a month. He does not help financially (He buys them things here and there but is not ordered to pay child support as we have half and half). In the order he was also ordered to be allowed to claim our younger son each year. In this case, since we have that “order” but he is not compliant would I still be able to claim my son? I am going to re-open our case and request full placement and full custody this upcoming year I just have to wait for some time off for work.

  25. Hi MS,
    The bottom line is, if you and your ex adhere to the decree and aren’t arguing, this is easy. Your problem (we actually spoke on the phone) is that your ex is contentious and you could wind up in a “gotcha” situation. In that case, I think you’re going to be counting days until your child is grown. Sorry.

  26. Hi Raquel,
    You have a court order allowing him to claim the exemption. I’m not an attorney, but I’m thinking that you have a “court order” allowing him the exemption. You should probably take that seriously.

    Now, you did have your son for more time, and that would allow you to claim him for EIC – if your income allows you to claim EIC. So I’d take that if I were you. That’s not violating any court order. (Okay, I’m not an attorney, and I’m not allowed to give legal advice, but that’s how I read it.)

    I hope that makes sense.

  27. Thank you for all the amazing advice. I have a special situation. My daughter is 9.Her father and I were never married so there is no divorce decree & we split before she was born. We have an order through an agency of court that is dated from 2008. The only signature on it is from a judge whom we never talked to – basically a mediator did all the work and we simply got the letter by mail. His monthly payments are $650 a month. My gross at that time was low so “support for an infant at the time in daycare came mostly from him”. She is now 9 years young & my gross has changed to greater however he still makes far more than I do, yet the order reflects the old info still… (I”m definitely not complaining- just sharing incase this means anything). The order also includes that he claims our daughter 3 out of 4 years. This has been going great… however I am now married and in 2014 my husband and children moved to another community state. My daughter has only visited her biological father for a total of 16 days in all of 2015.

    My desire is to claim her because she’s lived with me but I am not sure if I can do that. I was reading the tax info and it got a little muddy for me. Also, her father also pays medical and dental for our daughter and his new family and wife. -but what hasn’t been covered I pay out of pocket. Not to mention driving over 800 miles in 2015 for medical visits and her after school activities. Any tax advice would be great. Thank you in advance!

  28. My ex and I share custody but I am paying for full time day care in other words the father is getting a free ride off of me. I am being audited by the IRS and was told because the father has an higher AIG he is entitled to claim my son. My taxes were rejected by the IRS 2014 and I called the IRS explained that I share custody with my ex and asked if I should remove my son from my taxes. The IRS pulled up some interview questions and after answering them I was told to keep my son on my taxes for 2014. I recently received a letter stating I was being audited for 2014. I don’t think it’s fair as the IRS has provided me wrong information and my ex pays nothing for child care but is entitled to write my son off on his taxes

  29. Hi VS,
    The court agreement states that your ex gets to claim your daughter as a dependent for 3 out of 4 years. You went to mediation, and you agreed to that so there you have it. The fact that your circumstances have changed doesn’t change your court agreement. I’m not a lawyer, I can’t give legal advice, but common sense says that you’ve still got a court agreement, right?
    Now, since your daughter lives with you – it would give you head of household filing status – but that doesn’t help you since you’re married and already get the married filing jointly filing status. You could also claim EIC for her, but I’m guessing that your income is also too high for that as well. (If it’s not, you get the EIC for her, not your ex – even if he claims the exemption.)
    You also would get the child care credit – since she lives with you and you’re working. (That is if you have any daycare expenses for her.)

  30. Hi Sheila,
    What do you mean by “share custody”? This is really important because everybody seems to have a different answer as to what that means and the IRS doesn’t give a rat’s patootie what your divorce decree says when it says “shared custody.”

    Where does your son sleep at night? Is he in your home or his fathers?

    That answer determines who gets to claim your child on the taxes. That’s the big issue there.

    The only way — let me repeat – THE ONLY WAY your exe’s AGI comes into play is if your son spends an exact same number of nights in each of your homes.

    I’m repeating all this because I find that when the IRS is rattling off their “interview questions” people answer them a little too quickly without really understanding what the IRS really means.

    So, let’s say you did understand, and you did have exact equal custody and your ex does have a higher AGI — then you lose.

    But – maybe you and your ex could work together – he claim the exemption and you claim head of household and the child care credit and EIC. Or – if he gets to claim everything, then let him claim the child care credit too – and reimburse you for it. Yes, it would be better if he paid for the child care, but I suspect you won’t get him to do that.

    If the IRS truly did give you bad information about your taxes, you can request a penalty abatement (form 843) based upon bad information from the IRS. It won’t get you out of the tax, but it could get you out of the penalties anyway.

  31. Hello I’m Ron a mother of 2 .I am the only provider in the family and my husband stays home and watches my 2 year and my 6 year old.he owe money from child support from a child that’s not even his by blood.child support takes half of his check when hes working and what’s left is not even enough to pay for day care so we decided it’s better for him to just stay home and watch the kids while I work .last year things got rough and we decided to split up he lived with his mother while I have the kids.were not legally separated in paper but I am the only provider for the kids how can i claim both my kids and get the most money with out his child support getting deducted out of that money.Please give me an advice .Thank YOU So much

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