Head of Household - Divorced Parents

[Yardley CPA]

Hoping someone can verify this for me.  Divorced Parents.  Divorce decree claims parent's alternate taking child as a dependant.  Child lives with Mom fulltime.  Can Mom claim HOH during the years Dad claims the child, assuming Dad is not claiming HOH?  What if Dad is remarried and claiming MFJ?  Can Mom still claim HOH?

[Lion EA]

For tax purposes, if Mom meets the other requirements for HOH and the child lives with her more than half the year (counting nights), then she still is HOH even for the years she signs the dependency over to her ex.

Dad cannot be HOH unless he has another child living with him. He can certainly be MFJ if he remarries. But, his filing status does not change Mom's filing status once they are divorced.

Are you OK with which benefits Mom keeps as custodial (for IRS purposes) parent? And which benefits follow the dependency to Dad in years when Mom signs it over?

[Possi]

1 hour ago, Yardley CPA said:

Hoping someone can verify this for me.  Divorced Parents.  Divorce decree claims parent's alternate taking child as a dependant.  Child lives with Mom fulltime.  Can Mom claim HOH during the years Dad claims the child, assuming Dad is not claiming HOH?  What if Dad is remarried and claiming MFJ?  Can Mom still claim HOH?

Dad needs an 8332 to claim the dependent. No longer the benefit of the "exemption," (what I mean is the exemption dollars as before) but the child tax credit rides with that "exemption" when he's holding the 8332. 

Mom still claims the dependent care benefits and EIC, if she qualifies. 

Edited March 31, 2019 by Possi
exemption

[Yardley CPA]

1 hour ago, Lion EA said:

For tax purposes, if Mom meets the other requirements for HOH and the child lives with her more than half the year (counting nights), then she still is HOH even for the years she signs the dependency over to her ex.

Dad cannot be HOH unless he has another child living with him. He can certainly be MFJ if he remarries. But, his filing status does not change Mom's filing status once they are divorced.

Are you OK with which benefits Mom keeps as custodial (for IRS purposes) parent? And which benefits follow the dependency to Dad in years when Mom signs it over?

 

47 minutes ago, Possi said:

Dad needs an 8332 to claim the dependent. No longer the benefit of the "exemption," (what I mean is the exemption dollars as before) but the child tax credit rides with that "exemption" when he's holding the 8332. 

Mom still claims the dependent care benefits and EIC, if she qualifies. 

Thank you both for your comments.  Much appreciated.  HOH causes me headaches at time with divorced parents.  

[Lee B]

In my 26 years of preparing tax returns, I have only had this scenario once.

These rules are unique enough that I have decided to refer any potential clients with this particular situation to another preparer.

[Pacun]

It is simple, before the IRS, the parent where the child sleeps more than half of the year calls the shots. If that parent wants to claim that child every single year, he can and no one can overturn that for that particular year. The other parent (who was defeated in court and doesn't want to go back to it) has the only choice to go and beg the judge to hold the other parent in content or to change the custody and give primary custody of the child. As you know, this will take effect in future years AND not the years passed. Having 8332 has no meaning. I believe that form was created when the rules for dependency were different and now it is only used to balance the dinner table.

So if a custody parent comes to me and says... it is not the year where I should claim my child but I want to do it anyways. I would tell her/him, "sure... how many nights did the child slept at your home" and if the number is 183 on regular years or 184 on leap years... that's ALL I need. Keep in mind that I CANNOT and SHOULD NOT give legal advice and say something like "well, let me see the divorce decree?" After reading it and interpreting it (to which I don't have competence), I will say something like "You can be held in content for not following a court order"... I AM NOT a lawyer.

[Lee B]

What about the risk of claiming a dependent for a year that is not legally yours ?

[Jack from Ohio]

13 minutes ago, cbslee said:

What about the risk of claiming a dependent for a year that is not legally yours ?

The IRS makes dependency decisions based on the IRS rules.  Since 2008, they no longer adhere to any court papers.

If one of the parents, claims a child DIFFERENT than the COURT DOCS, their only option is having them charged with contempt of court.

The IRS, no longer plays child court.

[Pacun]

20 hours ago, cbslee said:

What about the risk of claiming a dependent for a year that is not legally yours ?

You are correct, I don't want to do that and that's why I politely ask "How many nights did your child slept under your roof?" if the number is at least 183 for regular years and 184 for leap years, I would tell that parent, yes, you can claim it.  Since I want to cover all angles, I should ask "how many nights did your ex slept under your roof and how many night was your child present.  

As you will understand the last question, while unlikely, is a game changer.

Let's say that the child slept 200 nights at the custodial parent's, but the custodial parent ALSO slept 100 nights with the ex and child (all three under the same roof), and the child slept 165 days on the non-custodial parent (just the two of them under the same roof), then the NON-custodial parent will call the shots. 

[ILLMAS]

I have the same case, couple divorced in late December 2018, father didn’t move out until this year.  I am not preparing the wife’s tax return but I am going to assumed she claimed HOH for two kids, father can claim one kid per divorce decree but will not live together, that’s just the arrangement.  So no HOH for father in 2018 for the one child?

[Gail in Virginia]

If the mother and father lived together until December of 2018, then neither of them can claim Unmarried Head of Household for 2018, regardless of who claims the children.  They would have had to live apart for at least six months of the year to qualify for HOH status.  Their choices for 2018 are MFJ or MFS.  For 2019, they will have lived separately for the required six months, so it will depend on who the children live with (who provides the household) as to who can claim HOH.  But it is possible the divorce will be final by the end of the year and the other parent can file as Single.

OOPS!  Just re-read the post from ILLMAS.  If the divorce was final in 2018, then parent who pad the bills for the house they were both living in would have the better claim for HOH.  If they were split evenly, then I don't know what to tell you.  They both lived with the kids, they both provided the household - this is why I hate these situations. 

 

[Lion EA]

Were the parents in two separate bedrooms, two separate households, for 2018? Both paying at least half for their household part of the house? You could probably make a case either way. Figure out the best scenario that fits reality for your client.

[Pacun]

ILLMAS... ask about vacation the parents took in 2018 and ask where the children were when one of them was on vacation. Whoever took vacation solo, will lose. Whoever took vacation with the noisy children will win.

I thought you could not get a divorce unless one of them moved away, especially when there are minor children.

[Catherine]

13 hours ago, Pacun said:

Whoever took vacation solo, will lose.

Whoever took vacation with kids left the other parent behind in a QUIET house!  Not sure that doesn't qualify for a "win" all by itself, lol.