[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!]

Taxpayer asks:

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?

Taxgirl says:

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.

Before you go: be sure to read my disclaimer. Remember, I’m a lawyer and we love disclaimers.
If you have a question, here’s how to Ask The Taxgirl.

Print Friendly, PDF & Email
Author

Kelly Phillips Erb is a tax attorney, tax writer, and podcaster.

Comments

  1. Kim Lothringer Reply

    Sorry, wrong answer! Because she is the custodial parent, she will still get to claim head of household, the dependent care credits and earned income credit for the years she releases the exemption to the father. Only the child tax credit and the exemption goes with the dependency, the rest of stuff stays with the custodial parent. So even if you pay daycare for the child you are not claiming that year, you can still take the credit for the daycare costs if you pay them. You may want to see about amending your return for those years.
    I teach basic tax class for H&R Block and that is something we stress in our chapters on dependents.

  2. Kim is right.

    IRS VITA training stresses that too.

    I call it the “exception to the ‘No King Solomon’ rule.”

    In the situation you describe, the non-custodial father could never get HoH, daycare credits, or earned income credit for the children for a particular tax year unless the children lived with him for more than half the tax year. Since the children lived with him for at most 146 days (=366-220) in 2008, the only child-related benefits your correspondent could legally release to the non-custodial father are the dependent exemptions, child tax credit (CTC), and additional child tax credit (ACTC).

    The law is confusing (and it changed a few years ago), so your confusion is understandable.

    There is another “all or nothing” rule, which may be what you were thinking of. If the taxpayer lived with the children in the same household along with another suitably related adult (e.g., the children’s grandparent, aunt, uncle, adult older sibling, etc.) then she could release ALL of the child-related tax benefits to that adult (or NONE of them) and nothing in between. That’s what I call the “No King Solomon” rule: if two or more eligible adults live in the same household with a qualifying child, then whoever claims one child-related benefit gets them all. There’s no splitting the benefits up among the adults who live with the child–it’s all or nothing.

    But the one exception to the “No King Solomon” rule: that’s the case in which there is a non-custodial parent and the custodial parent signs a Form 8332. If you read the instructions for that form, it is very clear–it ONLY releases the exemption, CTC, and ACTC. Under no circumstances can EIC, HoH, or daycare credit go to a parent who did not live in the same household with the children for more than half the year.*

    (* One must bear in mind, however, that the IRS does not define “live with” the same way the rest of us do. A child could be away at boarding school for 9 months of the year, for example, and still be considered to be “living with” his parent all 12 months because the IRS considers that to be a “temporary absence.”)

    Here’s the post I wrote up on the subject for my VITA students:
    http://bedbuffalos.blogspot.com/2009/01/no-king-solomon-rule.html

    The dependency rules are probably the most important single source of errors on tax returns for low-income working families. Getting them wrong could cause a huge amount of trouble for the family down the road, so my students and I take extraordinary care with these rules at our site.

    Mary O’Keeffe
    Union College VITA Schenectady NY

  3. Mea culpa.

    Thanks much for the clarification.

    I agree that it’s tricky and quite frankly, Pub 501 is not terribly clear on that point.

    The exception that you’re talking about is here: “If a child is treated as the qualifying child of the noncustodial parent under the rules for children of divorced or separated parents described earlier, only the noncustodial parent can claim an exemption and the child tax credit for the child. However, the noncustodial parent cannot claim the child as a qualifying child for head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, and the earned income credit. Only the custodial parent or another eligible taxpayer can claim the child as a qualifying child for these four tax benefits.”

    Literally, pages and pages of explanation about children of divorced parents – and a three sentence exception. But an important one.

    I suspect it’s going to become more complicated in the future. Whereas you used to be able to attach the applicable pages of your divorce decree, beginning with your 2009 returns, “the noncustodial parent will no longer be able to attach pages from the decree or agreement instead of Form 8332 if the decree or agreement was made after 2008. The noncustodial parent will have to attach Form 8332 or a similar statement signed by the custodial parent and whose only purpose is to release a claim to exemption.”

    Which begs the question, if the custodial parent won’t sign, what happens? Does the IRS then go to the tie-breaker rules?

  4. Kelly asked:” Which begs the question, if the custodial parent won’t sign, what happens? Does the IRS then go to the tie-breaker rules?”

    The answer to that is easy.

    If the custodial parent won’t sign the release, then as far the IRS is concerned, she can claim the benefits for the child. It’s not the job of the IRS to enforce divorce agreements.

    I’m not a lawyer, but I assume the only avenue of recourse for the non-custodial parent in a situation where the custodial parent refuses to sign the release would be to go to the Family Court judge who issued the decree to get an order forcing the custodial parent to sign the necessary paperwork releasing the claim to exemption.

  5. Similar question. I have two kids with split custody (they each live with my ex and myself half the time). The divorce decree says we each can claim one. However, we are going to figure the taxes according to the decree, and are willing to let the other claim the child if beneficial for tax purposes and split the difference. One of us makes about 60,000 and the other 17,000 with standard deductions and not much for other items (ie – loss, non itemized). Also, we were divorced in 2008 so we can make the child care expenses max out either way (6000).

    Since the kids don’t actually live with one more than the other, I think it would be ethical to work it either way.

    1. Low income parent: claims EIC on both, child care, HOH
    High income parent: claims both dependents, single (can they also claim HOH), no child care

    2. Low income parent: claims EIC on one child, HOH
    High income parent: claims both dependents, HOH, child care on 1 child

    I realize this is kind of complicated and probably not the greatest description, but would greatly appreciate any advise.

  6. Scott’s question raises some provocative tax policy questions for my students to consider, so I’ve addressed it in a post to my class blog here:

    http://bedbuffalos.blogspot.com/2009/03/provocative-question-from-taxpayer.html

    I used the National Bureau of Economic Research TaxSim model to project 2009 estimated tax liabilities. It turns out that taxes under option 1 are lower than under option 2, but either Scott and his ex-wife will face a lower total tax bill than if they had stayed married. Remarrying before the end of 2009 would raise their total tax bill about 50% compared to option 1.

  7. Thank you for your analysis. It seemed to me that it was better for the low income to be the “custodial” parent, but then the HOH classification goes away for the high income parent, which seemed backwards. Since we lived together for 9 months of 2008 and split custody the remainder of the 3 months, I think the custodial parent could be considered either way.

    Thanks again.

  8. Credit for child care incurred is a big credit for me . I pay 60% of the daycare costs for the year per the court decree. As I set out doing my taxes it appears that due to a remarriage in ’08 I am not able to take the Child care credits for 2 children. I have shared parenting 50/50 time – neither parent is the custodial parent. Of three children each parent claims a single (1) child a year alternating floating child # 3 every other years.

    It appears the IRS considers my new spouse as built in childcare because she was not working. It is complicated because new spouse did not get a W-2 but a form 1099-G for unemployment benefits…and those are not considered earned income. The new spouse received unemployment benefits, documented looking for work but without a W2 to post for the year so then I lose the Child Care credit. That is a huge hit. I’m trying to work this a few different ways and its not working…any tips?

  9. Can you please advise on the followng scenario?

    Couple divorced in 2000. Two children involved, current ages 12 and 14 years old. Non custodial parent requesting custodial parent to sign Tax Form 8332 -for 14 year old child in order to file Taxes for 2008. Custodial parent refusing to sign the form. Custodial parent’s tax refund has been filed -it is assumed not claiming 14 year old child-. Are there any steps noncustodial parent needs to follow in order to be able to file 2008 tax claim on a timely manner? If so, what are they and who should be contacted?

    Also, custodial parent has never agreed to sign Form 8332 for 14 year old child. -By doing so, it is assumed that custodial parent has tried to set presedent as of which child will be claimed once oldest child is non-claimable (18 years or highschool graduate). If this assuption is right, can custodial parent in deed keep claiming younger child for the two years after older child is non-claimable? Any recommendations as of ways to rectify this if at all possible?

    Thank you in advance for your help!

  10. please advise-

    so even though my two kids, 7 & 9, stay with me 45% of the time, I provide a household for them, & pay all child care expenses, I cannot claim to be a head of household or write off the dependent care expenses? please confirm. so much for using the tax code to encourage positive behavior & personal responsibility. once again Washington talking out of both sides of their large mouths

  11. son’s ex is living with someone, not working, she wants to claim one child as tax deduction on her “fellas” taxes. Can she do this?

  12. This is a tad complicated. As of November 2006 (when the divorce happened) my husband’s ex wife has legal full custody of their two children stated in the divorce papers, however, the children have lived with us from May 2008 because she became unstable. It is not legalized that the children are with us full time, and in the divorce papers it says that one parent claims one child and the other claims one child. At the time of divorce, the children were with the mother and my husband was paying child support. Last year we let her claim one child, pretty much out of pity, at this time we support the children 100%. She contributes less than 1%. Is it possible to say that because we provide more than total support for both children we can claim both. Or do we HAVE to do what it says in the divorce papers?

  13. Im not a lawyer but if I had to chose I would say both. Meaning, I would file head of household and claim them because if the IRS comes back to you all you would have to do is provide them with proof that the kids reside with you all year long. Whether it be school records, medical and etc. But in the mean time I would also go ahead and have it modified through the courts. That way you have legal documents and it makes it easier. Always dot your i’s and cross your t’s.

  14. Hi I have a quick question. My ex and I are supposed to split the daycare cost 50/50 per our divorce agreement. I am supposed to pay for the care in full and he is supposed to reimburse me his half within 1 week of my payment. However, he generally just pays a little here and there when ever he feels like it, often not meeting his 50% requirement. I am the custodial parent so I claim the children’s childcare expenses. Am I allowed to claim the full childcare bill since I pay the full amount up front and am reimbursed partially later? Or am I only allowed to claim my 50% even thought I don’t know when or if he will pay back his half?

    Thanks
    ~D

  15. My husband has 3 kids from a previous marriage, they have been divorced for 6 years now and my husband pays child support every month. We have the kids every other weekend from friday to Sunday night. Childcare is included in his child support order. My questions are if they go back to court can a judge order them to alternate claiming them every other year or is it based on a percentage of the time he has them? And even though he pays child support does he have to split other things like school clothes, cell phones?

  16. Another similar question to Scott’s. My boyfriend and ex-wife have 2 children. They alternate each year having the one child they claim as a dependent for an extra night that year as their divorce decree stipulates they have the kids 50/50 but for tax purposes have worked out an arrangement for an extra night alternating each year. His ex wife who has a higher income claims HOH, the child care expenses but not EIC, as her income is too high. My boyfriend claims the EIC for the child he has for the extra night, but can he also claim HOH for that child? Could he also claim the EIC for both children since his ex wife can’t? I assume the answer is “No” since the soc security number for that child will already be listed on her tax return for HOH and to claim HOH, the child has to live with that parent for more than 50% of the time. Appreciate any assistance with this most difficult situation.

  17. My ex husband paid no (zero) child support in 2010 and neither of our children spent any time with him during the year. Our divoce decree (pre 2008) allows him to take the exemption for one of our children and is not dependent on him paying child support. He is asking that I sign form 8332 but says he can take the exemption regardless if he attaches a copy of the divorce decree. This totally seems unfair as he has no contact nor pays any support for the children. I’ve asked him to sign form 8332 to ensure I get the deduction but evidently it doesn’t work in the reverse. What recourse do I have if any?

  18. Ex and I have been divorced since 2009. In the divorce decree, we agreed on a 50/50 custody with me claiming our son on my income tax from that year onward. Recently, he told me he will be claiming our son on his income tax. To avoid, further legal fees, I suggested, we’ll alternate years. He said no. He said that he will be claiming our son from now on. He has used our son to qualify for social services. Since I’ve gone back to work, I have medical & dental insurance for our son. Aside from a pair of shoes he bought 2 years ago, he has not bought any other piece of clothing for our son since. Can he claim our son without my agreement? What if I claim our son too next year, what will IRS do?

  19. State divorce court does not determine exemptions. They may say they do, but the IRS does not recognize them. The IRS court determines exemptions. Go to IRS Pub 501. The tax custodial parent is the parent that the child spends the great number of nights during the year. If one parent pays all of the expenses, but the child has more nights with the other parent, the only way that paying parent can take the child is fi the living with parent figns the Form 8332. If both parent claim the child, the IRS will grant the exemption to the living with parent. It doesn’t make a difference what the divorce court says without that Form 8332 being signed.

  20. I have been divorced for a year now and I have 3 children , In the decree it says he has can claim my oldest all the time and I get the other 2children , I did my taxes this year and I put down my oldest but adv I was not going to claim him but he does live with me full time and that they do not see their father ever . I recieved a call from my ex and he says he was unable to claim our oldest on his taxes due to someone already claiming him , I looked on my paper work and I recieved a care credit . Can I do that or am I wrong?

  21. My daughter divorced a year ago. Decree says he claims youngest and she their oldest. Today she filed and was rejected. So she redid it thinking her ex just made a mistake as to which child he was to claim. Rejected again…he has claimed both. Barring having to go back to court and spending all she would have gotten, does she have any recourse. Isn’t he in contempt of court?? I have been some research and am seeing more about some tiebreaker rule. If she sends in the paper version and all documents related to it, including a copy of her divorces papers will they look at both then and give her the exemptions. Will they make him repay? I feel so in the dark. Please shine some light on this for me if you can, please!

  22. I just reread my comment and I realize I did not mention…girls both spend equal time with both…shared custody. She makes a smaller income but not much. Please let me know if their is further information that would help. Thank you in advance for you help!

  23. Mr "ME" Trying to help This mom out. Reply

    This is a little crazy because it has to happen very frequently and it’s just not written very clearly anywhere I can find.

    Here is the deal. Divorce finalized in Dec of 2011. 4 Kids of 5 live with mom by court order for 75% of the year and it will probably be more. But for 2011 the kids lived with mom for more than 50% of the year and supported them 98% in every other way.

    OK: court order says this in these exact words: TAX EXEMPTION. Father shall have the kids for the dependency exemption for teh dtate and federal income tax purposes.

    That’s it. nothing else is added for Taxes. NOW, here is the second hitch. The Fathers income is way too high for him to qualify for EIC even if the Mother aggreed. Since she can qualify and the 4 of the kids do live with the mom nearly all of the time. Am I correct when I assume she can claim Head of houshold and EIC for 4 Children ( since the 5th is with his dad)? and that woudl still leave the Father with being able to claim the child tax credit on all 5 children?

    do I need to get any extra forms to do this tax set up? PS. The Father is a Real fun person to deal with <– sarcasm. I'd rather just be able to get this done than actually have to contact this guy.

  24. Mr "ME" Trying to help This mom out Reply

    sorry about the spelling errors, the court order does not have spelling errors.

    OK: court order says this in these exact words: TAX EXEMPTION. Father shall have the kids for the dependency exemption for the State and Federal income tax purposes.

  25. I am the custodial parent in my case. My ex threatened to claim one of my boys so I called the IRS to ask what my rights were. I was told that federal law which supersedes any state order gives the right to claim an exemption to the parent who has the children more than 50% of the time. There are a few more criteria, but more than likely you are the parent who should be claiming your children by federal law. I am not sure if that is something that you agreed to and you don’t want to disturb the peace, but if that doesn’t matter you could claim them and he couldn’t do much about it if he can’t prove he provided more than 50% of there care, and they were with him more than 50% of the year. If he files before you, you will have to paper file, then when the irs does it’s audits you will both be asked to provide proof of the criteria I discussed above. Unless you signed a form (i don’t remember the number) which basically gives up your right to claim, the exertions are your right!

  26. I have been dovorced 10 years and it states that my ex gets to claim our daughter in the divorce degree, but she is 18 now. We have shared custody 50 to 50, but she came living with me when she was 17 and she has been living with me since july. I have paid for insurance, but my daughter did for school clothes and school stuff, and etc, so my question is H&R block said that i can claim something for her because she has live with me over 6 months and we shared custody from January to july, so i took H&R block and did so. She said it don’t matter what the degree said, because she has lived with you over 6 months. So is this righ? I hope so cause I took the advice from a professional taxes person that did my taxes, and now my ex is saying she is going to audit me if i did, can she win this or what please am nervvous about this please answer

  27. Don Brown – I do not know why this just posted to my email since it appears to be back in feb – but still.

    This is silly what you have written here. Your wife cannot audit you. Ever. LOL that’s crazy to even say. Taking your Taxes to H&R block is silly too really but from the way that you wrote your post, maybe it’s best for you. If Your daughter lived with you more than 6 months you can claim her, that goes for any dependent – If your state divorce decree says you are not entitled to do so then your wife can sue you in court but she can’t audit you. The IRS does not care about state Orders or divorce papers. they only care about federal law. but that doesn’t mean that she can’t break out the decree and sue you for something in the state court. If your decree says you can claim her if shes with you for 50% of the year then you have nothing to worry about.

    this is plain and simple stuff here, if H&R is making it more difficult then you have a problem.

    you do realize H&R does not hire the most educated people don’t you? for real, those guys are regular folks that could give two shiitts about how much you get back or what you have to pay, they just file stuff and get paid. If somethings too far out of the way they do not even go for it for it you.

  28. I was divorced from my husband in August 2012, I misunderstood my Attorneys explanation about claiming our children on taxes , and in our divorce decree it states he can claim our 14 and 12 year old children every year. My question is their father pays support, but that’s it , my daughter stayed over his house three times in the past year, and my son five, no regular visitation, no help paying for sports or any activities! Can I use form 8332 and revoke the release of claim to exemption for all future years? It makes me sick that he has gone on vacation to Mexico for the past two years paid for with the money he received by deducting the children he barely sees !!!

Write A Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Skip to content