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
@Cynthia–
Kids are expensive! Good luck.
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.
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.
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.
Becky
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.)
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.
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.
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?
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.
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
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.
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?
@concerned tax filing–
The higher AGI will be the Mom with her new husband. The step parent’s income counts.
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?”
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.
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.
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?
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?
@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.
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!
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.
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?
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.
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!
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.
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.)
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!
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?
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?
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.
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.
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.
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
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
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.
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.
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
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.
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.
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?
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?
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.
Hi, This is exactly what I was looking for with just one question on my mind. If my sons mom (who doesn’t work and is married) has already claimed my son this year before I file my tax’s will this not work? I have brought up sharing the money she gets back for my son and it’s been nothing, but ugly arguments. I would just like to avoid the arguments if it isn’t going to work this year.
Thank you,
David
Hey Rey,
I answered you question on the “My Ex Claimed my Kid” page.
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…
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.)
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?
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.
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?