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
Hey Lynn,
I’m going to do some follow up research on this but I think you can let the other foster parent claim the exemptions etc and you still claim the adoption tax credit. You see, you’re claiming the adoption credit–not the exemption–so they don’t cross each other in the computer system.
I’m going to do a little follow up research (I’m writing this from home on a Sunday, I need my office books and stuff) but I’m thinking it’s going to work.
Here’s some information about claiming the adoption credit that you’ll be needing though: http://www.irs.gov/uac/Adoptive-Parents:-Don%E2%80%99t-Delay-Your-Adoption-Credit-Refund
You’ll have to mail in your tax return and the processing will be slow. I’ll double check on my answer and post something tomorrow though.
Hey Nikki,
Just saw your other post. If he’s living in another state, he can’t claim EIC. Just do the 8332 for the exemption.
Hi Nikki,
So let me be nosy. You and your ex split up, right? So is he a creepy ex or are you working together for what’s best for the baby? Really think about this before you do anything. Okay? Are you listening with both ears? (I guess reading with both eyes? It’s not the same but I want you to really understand me, okay?
If you ex is a “good guy” and working for the best for the baby–then let him claim the baby for head of household and EIC and the exemption. Why? Because he can use the refund for the baby and you don’t have any money. Now, normally the child has to live with a parent for over 6 months to claim head of household–but she wasn’t born for the whole year–so the IRS makes an exception for that.
Personally, I would go with him to a professional and be there while he files his taxes. Then have the refund split between the two of you–so that you get part of the refund he’s getting for your daughter–using the form 8888. Don’t leave until the tax pro e-files that return and it can’t be changed.
If you don’t want to do that, you may sign the 8332 form and give him the exemption. I’ve heard a lot of women say they are afraid to give their social security numbers to their ex’s. I would sign the 8332 but only give the last four digits of my social security number. This may not fly–but there’s some court cases about that so give it a try. What your ex needs is the 8332 or something close, I think using that last 4 digits should become accepted practice in the future.
Hi Tricia,
I can’t completely answer you question for you, but I’ve got a few observations:
1. the parent that claims the exemption is the one that gets the college tax credit. There is no law about this, but really the parent that pays the tuition should be the one to claim the exemption–that would only be fair. But–that’s my opinion, that’s not the law.
2. You say the daughter doesn’t live with her mother–but where does she live? If she’s at college, it still counts as her living with her parents–it’s an allowed abscence.
3. So–does your husband’s daughter live with you? Or is she living at college? Because that’s pretty much the key to what you can do.
4. Here’s a post about court orders and the IRS: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
5. One last thing–I worked on an EIC audit where the daughter claimed a different address than her father (who was being audited for claiming EIC). That was the cause of the audit–the daughter listing a different address so…just letting you know about that.
Amy,
If you can’t catch your return (and from what I’m hearing from folks, you won’t be able to) you must amend! Girlfriend–we’re talking a lot of money here. What crazy thing would keep you from fixing it?
Do not let anybody else claim your daughter. That’s tax fraud. Yes, if you amend your return, you’ll probably have to wait for 16 weeks to get that money. But you went and filed without your daughter anyway–so you’re getting what you thought you deserved so the extra money is just icing on the cake.
So–Amend the return. Claim your daughter. Take the money and do something smart with it. Open a bank account and keep the money in there just to use on your daughter.
Don’t even think about letting anybody else claim your child.
Ok I am confused on who claims what on taxes. Heres my story, I adopted 2 chuldren through Foster Care, but before they came to me they lived in another foster home for 6 1/2 months and then with me for 3 1/2 moths before adoption was finalized. Foster mom wants to claim them and says that I can still claim Adoption Tax Credit. But everything I keep reading says their SS# can’t be claimed by 2 different people. I have called several different tax prepares and they all say I claim all credits and the adoption tax credit. Is this True? I don’t want to take away anything that might be rightfully hers to claim, but at the same time don’t want to make it where I can’t claim the Adoption Credit. Can you please Help me??
Hi I forgot to add we do not have a court order but he does pay child support of 500.00 dollars a month. He lives in another state but he believes he should claim the baby because he has rights and he pays child support.
My ex and I (never been married) . I was unemployed 2012 due to having a baby and medical complications. The baby father wants to claim the baby as head of household and I not sure if he can. We lived with him for 4 months and then 3 months she live with me last year. She is 8 months now and lives with me. I know I cant claimed the baby this year but next year I want to claim her. Will I have problems claiming her next year or will the irs come after me for documents as far as where has the baby been living. I read there is a form 8332 that I need to fill out but I don’t want the father to have my social security number I don’t trust him with my social security number because he is always losing things. Is it possible that I can turn the paper separate? I am just not comfortable giving up my information I don’t want my identity to be stolen.
Situation:
My husbands divorce papers state the following:
IRS INCOME TAX EXEMPTION: The party granted primary residential responsibilty of the minor child shall have the benefit of any tax exemption for the child.
Question: His daughter is now 20 years old in college and used our tax returns for her financial aid paperwork and her legal residence on her drivers license is our address.
Does this give us the right to claim her over her mother since she is no longer living with her mother and hasnt for over 6 months and her mothers address is not her legal address.
Her mother says she will fight us over this so I am just curious what our rights are.
The frustrating part of this is she got more financial aid because we make less and her mother is taking the deduction for that!!
Amy,
The IRS isn’t even accepting returns until January 30th. However, preparers are allowed to stockpile them-meaning they can do the return but not e-file it yet. How did you get your taxes prepared? You may be able to catch it before it is accepted.
Jan and MIchael,
thank you so much for your input. I now have another situation. I read my court order and it states that my ex CANNOT claim my daughter if he is behind and still in arrears. He is over $9K in arrears, which means he CANNOT claim her at all! I have already filed my taxes without claiming our daughter. I’m afraid to amend since it’s going to take so long to get the return. Who else can claim our daughter? Anybody that lived with us? Or am I going to have to bite the bullet and amend my taxes?
Hey Mike,
I’m going to disagree with you a little bit here about Amy. The custodial parent can claim a dependency exemption and child tax credit when they are not splitting the exemption.
Here’s the thing–Amy gets the head of household and EIC no matter what. And this is the year that she signs the 8332 over to her ex so that he can claim the dependency exemption and the child tax credit. If the ex qualifies for a refund–the state will probably take the refund and it will go towards paying the back child support. (Depends upon your state and the rules but that’s what happens in many places.) But Amy won’t see that money right away–it tends to sit in limbo for months in case there’s any other claim to it.
Now, Amy may want to check with an attorney, but if her decree is from 2009 or later, the IRS won’t allow her ex to claim the dependency exemption or CTC with form 8332. So Amy–you could not sign the form and keep the exemption and CTC for yourself. BUT–realize that the judge could come back at you. If you do that–I’d toss that extra money in the bank ($1,000 for the CTC and–depending on your tax bracket, anywhere from 0 to $950 on the exemption). This way if the judge makes you lose the exemption–you can pay it back. I’m just tossing out options. It’s risky–because you do have a court order. But maybe your ex would go for it if you take that amount off of what he owes. I don’t know if you’re friendly enough to negotiate together.
Just adding my two cents worth.
Amy,
First, I would consult an attorney before you go against the judge orders. You can seek to modify the order if you have good reason. Since he is so backed up in child support, it may not be the wisest decision for him to take you to court.
Only the noncustodial parent can claim the child for purposes of the dependency exemption ($3,800 for 2012) and the Child Tax Credit. Since you are the custodial parent, you are still entitled to the HoH filing status, earned income credit, credit for child and dependent care expenses, or the childcare exclusion.
Okay, here is my situation and question. My ex boyfriend and I have a daughter in common. I took him to court for child support and he is ordered to.pay it, however he is also $9K in the hole with back support. The judge ordered that he gets to claim our daughter every other year. This is his year to file, however she lives with me, I pay all childcare expenses, and I am the custodial parent. We would qualify to split up the taxes, true? If so, what should my first step be? If not, what should I do? It just doesn’t make sense that he claims all of it whn she lives with me and he pays support but he’s so far behind. ANY and ALL info would help, desperate for answers.
Hi Johanna,
Excellent question! The custodial parent is the one that can claim the child care credit so that’s you!
Pretty simple question I think…. My ex-husband I and alternate years that we claim our son as a dependent. This is his year to claim our son. I am the custodial parent. Am I allowed to deduct child care expenses that I have paid in 2012? Thank you!
Jennifer,
you don’t live with your son. You can’t claim him if you don’t live with him. You can’t split an exemption because he does not live with a parent. You mother has legal guardianship through the court. I’m sorry, you don’t win this one.
I don’t live with my mom I have my own home and I’m 27. I’m trying to work with my caseworkers and counslors to get my son. And I didn’t give her guardianship. She took it to court so He could get enrolled into school. She hasn’t had an income in the last two years other than the state helping her and me giving her money Every two weeks and half of Everyone income tax in the last year. Bout a year ago I was living with my mother and she kicked me out because the government found I was living with her, and by law beings that I’m his biological mother they were going to start giving me his medical card ,foodstamps, and check every month. So If I claim him this year with me having an income what will happend If she claims him too with her not having an income?
@Linda,
Oops, guess I should read the whole post. So he bought a bassinet and some diapers? Okay, I was being snarky. I’m guessing that the father does not live with you and your daughter and that he does not really support the child outside of a few incidentals.
But here’s the thing–he does have a right to claim the baby as a dependent–so, you might want to keep that in mind. Should he? Well, it doesn’t seem like he’s supporting the child. But the child lives with a parent, and he’s the other parent.
You have a legal right to claim the child, but so does he. It’s time to talk to him.
Hi Linda,
It looks like you should be able to claim your daughter and her child as dependents on your tax return. My question to you would be: what about the father? Where does he fit into all this? If he’s in the picture at all, it could be a problem for you in claiming the grandson.
Forgot to mention the father does sometimes provide help by buying my grandson a bassinet, diapers,
Hi Jennifer,
First, you can’t split an exemption with your mother. Just thought I’d mention that since you posted on this page.
How old are you? You say your mother gave you permission to claim your son. You’re the parent. Are you under 18?
If you both claimed your son, eventually you’d get a letter from the IRS and would have to sort things out.
If you and your mom don’t get along, why are you living there? Is she supporting you? If she’s supporting you, then you probably need to work with her about this. If you’re an adult and can afford to support your child on your own–then maybe it’s time to move.
Now, you’re the parent, what’s the best thing for your child? Do that. That might mean sucking it up and working it out with your mom. Do what’s best for your kid.
Since 2011 our 34 yr old daughter lives with us (parents) did not wk for half of 2011 n the full year 2012.our grandson was born in June 2012. She does recd food stamp assistance and wic for baby. Can we claim grandson n my daughter.
Hi Autumn,
My head is spinning! You gave guardianship to your parents and that was through the courts right? So if your parents decided to fight you on this they are the legal guardians of your child, right?
But you are also the mom, and you do live with your child, right?
So you technically meet the relationship, age, residency and joint return tests. (At least I’m guessing that your child is not married and filing a joint tax return.)
So, I think you’re okay. But I would make sure that your parents are okay with it also. In a tiebreaker, generally the parent wins, but since you gave up guardianship–if your parents are going to fight you, you might have a problem. I’m not sure which way the IRS would lean on this one in a fight.
Ok so I have custody of my son but stays with my mother. My mother has given me the right to claim him the last two years and now I’m wondering If she has been claiming him too. What will the outcome be and If were both have been claiming him what’s the worst that will happen? Oh and I’ve been giving her half the last two years. Cash no checks or etc. And we never wrote out anything any kind of agreement. And on top of it all me and my mom don’t really get along. So its time for me to do my taxes and I need to know what to do. Please help
I lived with my parents from April till December of 2012, in April I gave my parents guardianship of my son through the courts my son lived with me from January till March 30th in another state. Since I lived with my son the whole year but did a guardianship agreement with my parents who receive social security can I claim my son on my taxes since me and my parents both file separate tax returns and my son did live with my son
Hi J–
Since the primary custody is with the mother, she is allowed to claim the EIC and the head of household designation. But, since she earned less than $15,000 then your husband will be claiming the exemption and the child tax credit.
At least that’s what’s supposed to happen.
My husband and his sons mother are trying to file taxes. The court order states that the father shall have the right to claim the minor child as a dependent for income tax purposes for all years that Mother’s annual income is below $15000.00. In the event Mother’s income exceeds 15000.00, mother shall have the right to claim the minor child as a dependent for income tax purposes for even numbered tax years and father shall have the right to claim the minor child as a dependent for income tax purposes for odd-numbered tax years. Each of the parties shall execute all documents necessary to effectuate the terms of this income tax dependency provision.
The parents have legal joint custody with the primary residence being with mom.
So, my question is mom made less than $15000.00 is she able to claim the child at all on her taxes or only dad? She says that she can also claim him. Is this corrent?
Hi Alley,
Here’s the thing-what does the court order say? And what’s the date on it? Clearly you get to claim the EIC and head of household on both children because they live with you.
Read this post about court ordered exemptions to see if you still have to let him claim the exemptions or not: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Hi. So here is my story. I hope that i can get some help. When my ex husband and i were divorced we were living in the same state. we have joint custody with a court order that he has to pay me 50 dollars a month for 2 kids and each of us getting to claim 1 child at tax time. 6 months after our divorce he gave me consent to move out of state with both of our children. since my move (1 and a half years ago) the state we were divorced in doesnt enforce the court order child support since i moved from that state. my question is can i now legally claim both kids on my taxes since he hasnt paid any child support and since the children have not lived with him at all all year? Thanks Alley
Thank you! Very helpful!!!
Hi Kimberly,
Your answer is going to be here: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/comment-page-2/#comment-8489
Ok you prob answered this somewhere up there but i just felt it would be easier to just ask myself.
My situation is a little different I think. My ex-husband and i had an agreement in our divorce that stated he would claim one child and I would claim the other. he is supposed to pay $400/mo for child support which he is always behind and right now is 3 months behind. He only sees the kids like once a week. They hardly ever spend the night with him. I don’t feel that it is fair for him to get to claim the one child when he doesn’t really do anything, except sometimes give child support. he seems to love his kids and acts like a good parent, but when it comes to money…..well you know….
So can i legally still claim both of them even though our divorce agreement says he claims one and i claim the other? Thanks, kimberly
Anesa,
You are the custodial parent-the parent with whom the child resides for the greater number of nights during the calendar year. He is not able to claim him. But that doesn’t mean he won’t try to. Also, keep track of the nights you have your son on a calendar.
My fathers son and I have never been married and we are not together . My son lives with me and sees his father every other week Thursday thru Monday .. Is he able to claim him on taxes for the days he has him ?
NeedHelp,
His girlfriend cannot claim them. And her saying that you will owe the IRS if you try to claim them is a preposterous.
I’m assuming you are the custodial parent—the parent with whom the child resides for the greater number of nights during the calendar year. You should be able to claim your child for the earned income credit, head of household status, and the dependent care credit. I don’t see why you’d have to do a Form 8332.
You should file your return claiming your kids. Because if she does it, when you mail yours in, it will flag both of them. Since she is illegally claiming the kids, it can only help your case.
I am divorced with joint custody of three children. My divorce states I claim the children on odd years their father claims them on even years, making this his year, however, he did not work at all for 2012. My ex husbands girlfriend whom he lives with claimed My children on her own taxes. She has no relation to the children because she is not married to their father. Can she legally claim them, or do I have the right because My ex husband cant? His girlfriend is telling me I will owe the IRS if I try to claim them. I have also kept a log of when the children were with me and when they were with him and I had them for one more night than he did for the entire year. Do I have the right to claim my children?
Hi Carol,
The divorce decree custory order outlining the days the child spends with the parents is—pardon me for saying this—a piece of trash. Sorry.
The truth is, most families don’t go by that. The IRS knows nobody goes by that. So, it’s not going to help.
So you’re going to have to prove where the child really was–not what the decree says.
So–which parent had the child more nights? That’s the first criteria. So if one parent can prove one more night–that parent wins.
The bit about equal number of nights–that’s when a child lives with both parents for the entire year, but in January they split up and in February they file their return, hence the child lived with both parents for 365 days. (Or you can make up a scenario about leap year.)
So, forget all the other years, forget the divorce decree and the child custody order. Where was the child? That parent will be the one who earns the exemption.
Hi Elizabeth,
It does sound to me like your ex-husband is trying to take you for a ride. The child tax credit might be the only thing you lose if you lose anything. I think the $3500 would be the exemption for claiming your daughter, but that’s not the dollar amount of the tax, that’s the amount that you would reduce your taxable income by. So if you’re in the 15% tax bracket, that’s only $525. It’s not the money that he would get.
Hold your head up and and I fight him. Just file your taxes the right way, which is you claiming your child this year. I wouldn’t worry about the IRS. You might want to check on the rules with the clearing house and your court order, but I think you’re going to be okay with the IRS.
One thing–if he does try to claim, your refund could be delayed by 75 days–just a heads up.
Sorry — another question about which spouse in a divorce situation can claim the exemption for their minor son.
The divorce decree and custody order did not address taxes. The custody order set out a schedule of alternating weeks, with the child transferred every Friday. The order named two weeks’ vacation time for each parent (father the last two weeks of June; mother the first two weeks of July). Holidays other than Christmas were to alternate (on odd numbered years, mom gets spring break and Thanksgiving; dad gets them on even numbered years). Christmas is split with the child going to one house from the time school gets out until 2pm Christmas day, at which point he is transferred to the other house until the night before school resumes.
The custody order clearly states that each year the alternating weekly calendar gets laid out (stating which parent’s week begins each Friday) and then the vacation and holiday schedules are laid on top of that schedule. Whoever’s day it is when the vacation or holiday is over, gets the child starting that day and continuing with the regular weekly schedule. So for example, if the father has the child for spring break, and at the end of spring break that Sunday night is during what would be the father’s regular week, he would keep the child through the following Friday, even though he had already had him for a week.
The child support calculation form listed the percent of time to each parent as 50/50.
For the first five years after the divorce, the father, who had the higher AGI, claimed the exemption for the minor son. He did not claim the child tax credit, because in order to get that credit the claiming parent must have had the child a majority of time – at least 51%. During these years the mother never attempted to claim the child and never challenged the father’s claiming him.
A year ago, the mother told the father that she was going to start claiming the child, and even though he told her that he would, as allowed by tax law, continue to do so, she did claim him on her 2011 return. The father’s ereturn was declined; his accountant filed a paper return, and he received his refund. Now they are facing an audit.
The mother claims that because she had the minor child for holidays in 2011, she had him for more overnights, and therefore she is entitled to the exemption for 2011. The father claims that because the custody order decreed a 50/50 split, as noted in the support calculation, AND in the design of the custody calendar, which lays out the alternating weeks evenly with the holidays overlaying, that the effective split is 50/50. There is an example in an IRS bulletin about a child going to camp for three weeks, and the IRS says that the parents should just split that time but assume that camp is an extra thing on top of, but not amending, the base custody schedule.
Who is correct here? What would you advise in advance of an audit? By definition, since there are 365 days in a year, unless the parents spend one night in the same place with the child, SOMEONE is always going to have one more night than the other, even if the child alternates homes every day. Since that’s the case, it seems that the fact of odd numbered nights in the year means that since someone would always win if the number of nights alone always trumped, the IRS wouldn’t need a plan for a tiebreaker.
But in fact they have further guidance about what to do in the case of a really even split. The fact that they have a ‘tiebreaker’ which says that in the case of 50/50 the exemption goes to the parent with the higher AGI itself shows that they conceive of situations that are honestly 50/50, even though numerically that can’t be possible.
One more piece of this — I just spoke with the IRS helpline and the woman there said that if the father provided more than half of support for the child, that also makes the tiebreaker go to him. I thought I read in IRS guidelines that the amount of support is no longer a criteria.
THANK YOU!!
Hello,
I have a question. My ex husband and I have a post decree that states I claim our daughter on even years and he will claim her on odd year. Well last march 2012 he was behind in child support by almost a year so he said while we were on the phone with a court mediator that I could claim her that year (2011) because he was so far behind. He then asked the mediator if I had to call clearing house to tell them he let me claim her on his year and she said no because if he didnt give money directly to them for CS than its looked at as a gift. He then asked me if I would call them and tell them he let me claim her for his year amd I stil have not done so yet ( he is almost 10,000 behind) so we are not on good terms. Now since tax season is here he is telling me that he is going to tell the IRS that I claimed her his year if I dont call the clearing house and tell them I Claimed her on his year and to take it off of what he owes in back child supprt, he is saying I would then owe 3500 for claiming her in 2011 but isnt the child tax credit only $1,000?? Also She has lived ONLY with me since April 2009, he has not seen her since then. So I am the custodial parent in this case. I dont know here he is coming up with 3,500 but even if for soem reason they make pay back the CTC it should only be $1000, he is wanting the EIC I got as well Im guessing- but he cant claim that since he is the non custodial parent, right?? Im just very upset by his actions bc he is so greeedy and only cares about money. Will this affect me claiming her for 2012, it is my year?? Will affect me if he files before I do?? He hasnt worked in over a year thats all I know. I just want to see what I need to do, because I feel like he is trying to take me for what I have.
Hi Yvonne,
So whoever has custody claims the EIC and head of household. The other one gets the dependency exemption and the child tax credit.
So, the one who has custody signs a form 8332 and gives it to the other one. Let’s say you have custody, he doesn’t.
You sign the 8332. You list your son as the reason you claim HOH and EIC but you do not claim the dependency exemption and the child tax credit. (Usually there are check boxes in the input section of the dependent screen.)
You boyfriend puts your son down as a dependent, but checks the boxes, “not elibible for EIC or HOH.”
That’s basically it. Good luck.
Hi, thanks for the info…I’ve talked to several tax consultants and no one wants to hear me out about splitting it the way you described. I have a son and his father and I never married nor do we live together, however, we have remained good friends and he never has a problem with who claims our son, we always split the return in the end. Since no one wants to hear me out I wanted to attempt to do this on my own. I studied business and took extra tax classes so I’m familiar with a lot but I don’t work in the tax field so I know there’s still a lot I’m missing. This would be such a great solution for both of us to maximize our return since we split mostly every and we both earn about the same amount. Any tips about me attempting this maneuver- I would greatly appreciate!
@J Houchens,
I’m guessing that the children both live with you since your ex husband was in prison. So you already have the EIC and the Head of Household designation with you. The only thing your ex husband would be able to claim would be the exemption which includes the child tax credit.
So, to protect yourself, have your ex sign a statement that says he is allowing you to claim the exemption for your other child as well.
Hi Thomas,
So your wife has custody of all three children and you get to claim the exemptions for two of them. So you get the exemptions and the child tax credit, she can claim the EIC for all three. You’ve got it.
Hi Ashley,
I have a question, you say you were denied–do you mean that your return was rejected? The reason I ask, is you should have all the credits–EIC, HOH, exemption, and child tax credit I’m guessing that the IRS told you that.
Now I want you to claim your son this year. Your return might get rejected again because I’m guessing that your ex will also claim him. But–if he does, you just mail your tax return in and claim your child. There’ll be a fight, but you are in the right. Be strong. You refund will be delayed, but it is yours. Go for it.
@ HELP!
You’re in the right. Yes, you’re the one entitled to EIC and HOH. You’ll probably have a problem with a delay of your refund, but you’re in the right. When you file your tax return claiming EIC and HOH, it does notify the IRS.
The IRS is aware of these problems and they are trying to correct it. (We’ll see if it gets any better, but they are trying.) I expect your refund to take 75 days–that’s what the IRS says will happen now when there’s a conflict in claiming exemptions.
You do have the right to claim your child. You may have to go through hoops, but you shouldn’t need a lawyer. Good luck.
My ex-husband wants me to claim both of our children on my taxes this year because his tax return is going to be garnished. It is in our divorce decree that he claims one and I claim one. However he was just recently released from pirson so he has never claimed them before so It would really help me out to claim both since I am used to getting a lot back. However, I’m afraid I could get in trouble for it later. Especially if he regrets this decision. What should I do?
Hello, I got divorced in 2004. My ex wife got custody and we agreed to have it in the papers for me to claim our two kids until they are 18. There has never been a issue with this.. I guess this year they bumped the EIC to three children and now she would like to claim one of our kids.. I really didn’t have a problem with this, and today while talking she said she heard I can still claim both and she can claim them for the EIC and head of house hold.. I’m pretty sure I understand in your posting I can claim them for the exceptions correct? And also I wouldn’t claim head of house hold then.. Or do I claim head of house hold for my son and just the exception for my daughter.. Thanks for your advice
Hi Andrea,
The boys lived with you for almost 6 months, but it sounds like they didn’t live with you for over 6 months so you probably can’t. What about their father, how long did they live with him? And what about the mother?
Sorry.