[IMPORTANT editor’s note: When I wrote this post, I began with “I don’t think so” because the rules are very confusing and this falls under an exception. Since the original post, I’ve been made aware that I was wrong. Hey, it happens. I’ve chosen to retain the original post since the comments address what’s wrong – rather than rewrite it. Rewriting it just didn’t feel right. So please read the comments. They provide valuable information about the right answer – and where exactly I went wrong. Thanks to readers Mary and Kim for writing in!]
I have been divorced for 3 1/2 years. We have two kids together and in the divorce agreement it says that we would each take a child as a tax dependent exemption for tax years 2005, 2006, 2007 and 2008 and then he will get both in 2009. The two kids lived with me 202 days out of the year (overnights) and my ex pays me $660 a month in child support.
Since my divorce I have filed head of house hold and took one exemption, the child care credit and one child tax credit. In 2009, when he is allowed to take both children on his return, will I still be able to file head of household and take my child care credit, even though I do not claim them as an exemption?
I don’t think so. If you and your ex have agreed that you will alternate tax years to claim the children, the related tax benefits apply only to the parent who makes the claim. In other words, tax benefits are available to the parent claiming the child, assuming that the benefits apply in the first place. These benefits include:
- Personal exemption
- Child tax credit
- Head of household filing status
- Child and dependent care credit
- Dependent care benefit income exclusion
- Earned income credit
So, for years in which your ex claims the children, you cannot claim any of these benefits. As far as the IRS is concerned, you cannot divide tax benefits related to qualifying children between the two of you in the same tax year.