Who gets to claim kids on taxes with 50/50 joint legal and physical custody?

My ex and I are currently in the middle of a divorce that started in September of '18. We have two children together and he was supposed to be paying child support since November when it was ordered. He's given me nothing for them to date. We both signed the custody agreement and we share joint legal and physical custody 50/50.

My question is, can I claim that I took care of the kids more than fifty percent of the time on our taxes because he hasn't been paying child support for more than half the year?

I make less than him, but I can claim Head of Household and get that credit, as well as the Child Tax Credit. He makes enough that he can't claim the child tax credit anymore. And he's very pigheaded. It's more than likely going to come down to which of us can efile faster with the irs. But is there a legal precedent for this?

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  • 5 months ago
    Best answer

    You can do only what you could do if he was paying child support. You cannot claim anything that you could not claim if he was paying child support.

    It only comes down to who files faster if you both efile. If either of you files on paper, by mail, then it doesn't matter who files first.

    It's not possible to be exactly 50-50, because the number of days in the year isn't divisible by 2. The closest it could be is 183-182. Even if you alternated days, whomever had the kids January 1, 3, 5, etc., and December 31, 29, 27, etc., had them 183 days and whomever had them January 2, 4, 6, etc., and December 30, 28, etc., had them 182 days. The official rule is that you get a calendar and literally count the days to see who had the kids 183 days and who had them 182 days.

    Under no circumstances, mention child support. If you say that you claimed them because he hasn't been paying child support, then you cannot claim them. No claim can ever be allowed if payment, or nonpayment, of child support is the reason.

  • Eva
    Lv 7
    5 months ago

    BTW you can't claim head of household for 2018 unless you and your husband did not live together after June 30, 2018. Look up the rules and flow chart for claiming HOH.

    • It would be for the 2019 tax year. So I'm good, since we've been separated since August 2018.

  • 5 months ago

    Child support is immaterial. The IRS generally goes by what the divorce decree says about custody, and if that is not clear, you need to keep a calendar handy. Who efiles first only pertains to efiling, not who gets the claiming rights. The party that efiles first is the ONLY party that efiles and claims a child. Once that happens, the other party's attempt to efile is rejected and they must file a paper return. Then the IRS investigates and sorts out which party gets the claim.

    As others have pointed out, there can be no 50/50 split (except in a Leap year). If the divorce decree doesn't state that one party takes the claim one year and the other the next, then again, you need to keep that calendar handy and record the actual days you had custody.

  • 5 months ago

    Divorce papers will state you claim one year, ex claims the next.

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  • 5 months ago

    The person where the kids live most of the time or their primary place to live, gets to claim the kids. And if your other claims them first all you have to do is let the IRS know and prove they live with you and you will get the money and they will go after the other party to get the money back. Easy peasy.

  • 5 months ago

    There an odd number of nights in the year, so true 50/50 is impossible. Someone had them more. It has nothing to do with who files first. You need to log the actual nights you have the children. If you have them for 183 or more, you get to claim.

    The child support is not relevant.

  • 5 months ago

    Paying or not paying child support has nothing to do with claiming the child on taxes.

    Source(s): Certified Paralegal, with 25+ years' experience.
  • Shay
    Lv 7
    5 months ago

    The simple answer here is that you have "joint" custody of TWO children.

    Each of you claims one child on your taxes. You still get to claim HOH because claiming one child gives you a qualifying relative for HOH.

    Otherwise, you could fight it out and delay your tax returns by both trying to claim the children if you can't reach any other agreement. The IRS does not care about anything in a child custody agreement. They only care about the rules that they set up. For the IRS, it is based on the number of nights spent with the parent. The parent that has the children for the most nights wins according to the IRS.

    • NA
      Lv 7
      5 months agoReport

      The IRS is not going to buy the idea that one child lived with each parent unless they can prove each had their child for 183+ nights per year. The IRS doesn't expect this to happen very often.

  • 5 months ago

    It could be either of you OR alternating years. If you divorce decree was properly written, it is what the IRS calls a Qualified Domestic Relations Order, QDRO and whatever it says on the issue is legally binding.

    • STEVEN F
      Lv 7
      5 months agoReport

      A QDRO is a QDRO if, and ONLY if, it meets IRS requirements to determine who can claim the child for tax purposes. QDRO is the IRS term for an order that meets that standard.

  • 5 months ago

    With 50:50 custody, generally there is no child support so first thing you need to check is your court order.

    You cannot claim that you took care of the kids more than 50% of the time if you did not. Generally with 50:50 custody you take it in turns to claim them. Look at your court order.

    If he has child support arrears, go back to the court and tell them.

    • NA
      Lv 7
      5 months agoReport

      The parent who had the right to claim them would file by mail if their return doesn't go through electronically.

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