Starting with the current 2009 tax
year, it will no longer matter what is stated in your divorce decree as to which parent can claim a child. The IRS will no longer honor those divorce agreements alone. But your question specifically addresses who can claim Head of Household status, and that is not something which is determined by wording in a divorce decree.
for claiming head of household status are this:
1. You must either be unmarried or considered to be unmarried on the last day of the year. You would be considered to be unmarried on the last day of the tax year if you and your spouse have been separated for the last 6 months of the year.
2. You paid more than half the costs of keeping up a home for the year.
3. A qualifying person lived with you in the home for more than half of the year, except for temporary absences, such as school. The qualifying person does not necessarily have to be someone that you claim as a dependent. This would occur in divorce situations where a child lives with one parent, but that parent signs over the right to claim the exemption to the other spouse. The parent with whom the child lives can still claim HOH status.
Those are the rules which dictate whether or not you can claim HOH status.
Claiming the children as dependents is a separate issue. In order to claim a child as your dependent, the IRS requires that the child be claimed by the parent with whom the child lived for most of the year. In a case where the children spend equal time with each parent, then the tie-breaking rule is that the parent with the highest AGI is allowed to claim the child as a dependent.
A parent who has the child most of the year may also agree to sign over his or her rights to claim that child by signing Form 8332 which releases their claim to the exemption. That allows the other parent to then claim the child. As explained earlier, the custodial parent could still claim HOH status, because the child actually lived with him or her for most of the year. The other parent who was given permission to claim the child can claim an exemption for the child, but could not also claim HOH status because the child did not live with him or her for most of the year.
The rules surrounding HOH status for divorced individuals with children can be confusing at times, so if you have more questions on this please let me know, and I will try to help you with those questions.
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