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TaxMomNJ
TaxMomNJ, Senior Tax Advisor
Category: Tax
Satisfied Customers: 245
Experience:  7 years experience with tax preparation company, over 500 hours of tax courses taken
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My husband has two children from a previous marriage. In the

Customer Question

My husband has two children from a previous marriage. In the divorce decree we are to claim his 6 year old son and the ex-wife is to claim the 4 year old daughter. The daughter is in day care and we split the cost with her mother. The mother is stating she can claim all of the little girls day care payments on her taxes even if she didn't pay for the whole amount.

Is that correct? Can she claim the portion that we paid for daycare on her taxes? We understand that we can't claim anything because we don't claim the daughter, however can you claim an expense for a child if you didn't pay for it?
Submitted: 4 years ago.
Category: Tax
Expert:  TaxMomNJ replied 4 years ago.

TaxMomNJ :

Hello,

May I ask you a few questions to fully understand the situation?

TaxMomNJ and other Tax Specialists are ready to help you
Expert:  TaxMomNJ replied 4 years ago.
How much time do the children stay with their mother? How much time do they stay with their father?
Customer: replied 4 years ago.

The custody is joint and the physical placement is 60/40. The kids are with us on Tues/Thursday and every other weekend. They are with their mom mon/wed and every other weekend. However, on our weekends they go back to their mom on Sunday morning.

 

We split all child expenses and she also gets child support.

Expert:  TaxMomNJ replied 4 years ago.
The IRS has a publication specific to Divorced and Separated parents. I am providing you a link: http://www.irs.gov/pub/irs-pdf/p504.pdf

On page 9, they explain the rules regarding who claims a child. Divorce decrees are no longer taken into consideration by the IRS. According to the laws regarding divorced and separated parents, the parent with whom the child spent more nights with is the custodial parent. The other parent is the noncustodial parent.

On page 11, under "Applying this special rule to divorced or separated parents", they discuss tax benefits that go to the custodial and noncustodial parent when the noncustodial parent claims the child's exemption.

To summarize: When the noncustodial parent claims the child's exemption, the noncustodial parent is allowed the exemption and the child tax credit only. The custodial parent is still allowed (if applicable) head of household filing status, earned income tax credit, and the child and dependent care credit.

The answer to your question is: She is the only person legally allowed to claim child care expenses. Since she did not pay all costs of child care, she really should only claim what she paid on her return. However, your husband might consider asking her to credit him for any refund she receives on expenses he has paid if he is willing.