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
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.
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.
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.
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!
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
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?
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?
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.
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.
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.
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.
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.)
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
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.
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.
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!
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.
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?
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.
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.
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.
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.
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.)
Sorry.
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.
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.
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?
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.
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?
@ARS,
Yes, you can split an exemption. Did you read the post above? It’s all about how to do it legally.
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?
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.
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.
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.
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.
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.
Sorry
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.
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
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.
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.
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.
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
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.
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.
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.
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
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!!
Becky
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.) 🙂
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!
Becky
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.
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?