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Can both my ex-wife and I both claim head of household if I am claiming our child. My child spends just over 50% with the other parent.h her

Forum|Forum|7 years ago
June 4, 2019
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Best answer by Texas Roger

Sorry to be a pain, but I am sure you can understand how confusing this issue is. So I thought I would give more details:

In this case, there is 1 child. Parents divorced in 2010. They have agreed to split custody with the child 50/50. They have been alternating taking the child as a dependent each year; on the year the other does not take the child, they were filing as Single. The Spouse has since remarried so I assume he is now filing as either MFJ or MFS. I did TP return for 2018; she took the dependent. I am now doing her 2019 return and trying to determine if she can file as HOH. I believe she is the Custodial Parent because of her salary. So my take is that she can take HOH and send an 8332 for to the Spouse, and send one separately to the IRS. My source for this is the Pub 504, pages 22 - 24, Children of Divorced or Separated Parents.

50/50 custody is a legal arrangement not recognized by the IRS for determining who the custodial parent is. The IRS rules say that the custodial parent is the parent who the child spent more than half the nights of the year with. In every year but leap year, there are an odd number of nights during the year so the parent who had the child one night or more than the other is the custodial parent. You are correct that a tie breaker when the number of nights are the same is whoever has the higher AGI.

If she is the custodial parent, she can claim the child for qualifying child benefits and release the dependency to the other parent using form 8332. If she also meets all the requirements to file as Head of Household, she can use that filing status. Here are the requirements:

1. You are not married or “considered unmarried” on the last day of the year. You are considered unmarried if you lived apart from your spouse the entire last 6 months of the year.
2. If "considered unmarried" you file a separate return from your spouse.
3. You paid more than half the cost of keeping up your home for the year.
4. You have a qualifying child (whether or not you claim the dependency exemption) or you claim a dependency exemption for a “qualifying person” who is related to you and who lived with you in the home for more than half the year. An exception is a parent does not have to live with you to be a qualifying person.

Hal_Al

Employee

No. Only one of you can claim HoH and that is her.

There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

J

JFG1

I found this on the IRS website. It seems to contradict you take on using the HOH filing status?

T

Texas Roger

Employee

You didn't post what you found from the IRS. If there is only one child who can be claimed as a qualifying child, the only parent who can file as Head of Household is the parent who the child lived with more than half the year. If there are two children and one lives with one parent more than half the year and the other lives with the other parent more than half the year, then each parent would have a qualifying child and might be able to file as Head of Household.

W

Wally22

So I have a similar complex situation I am struggling with...

Divorce agreement is 50/50. Agreed to go every other year on exemption for dependent. I had it exemption for 2019...mother gets it this year. So I am signing dependent exemption over to her with form 8332 waiver. I think I qualify for hoh since my AGI is higher. Can mother also claim hoh? She is otherwise single.

DMarkM1

No, only the custodial parent can claim head of household. You are correct. If the nights the child spend with both parents are the same, the tiebreaker is the higher AGI. You would be the custodial parent.

Of note assuming the child is age 16 or under and qualifies for the stimulus payments, the child's mother should also get those payments on her 2020 tax return since she is claiming the child this year. That is true even though you may have received stimulus payments for the child based on the 2019 returns.

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