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Im going through a divorce right now. Both my soon to be

I'm going through a divorce...
I'm going through a divorce right now. Both my soon to be ex and I had a mediation settlement agreement on our final divorce with our lawyers. Starting March 1, 2014, we will split the days to 50/50 with our son (5-2-2-5 schedule). We both agreed that I will be determine as primary residence for our son. We never talk about claiming my son on tax exemption. Now he requested to my lawyer that we alternate years starting next year. I refused to do that since I have been the custodial parent. We still haven't sign our final decree yet. He also supposed to pay child support and he still hasn't. Please advise if I should agree to his request.
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Answered in 15 minutes by:
10/1/2013
Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 30,331
Experience: Taxes, Immigration, Labor Relations
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Lev :

Hi and welcome to our site!


Under the IRS rules the custodial parent is the parent with whom the child lived for the greater part of the year. The other parent is the noncustodial parent.
Generally - the IRS doesn't follow your divorce degree. According to the IRS - the custodial parent has rights to claim the child as a dependent and for all other tax benefits.
However - when the divorce degree assigns the right to claim a dependent to the noncustodial parent - you as the custodial parent should release the claim to the noncustodial parent by signing the form 8332 - http://www.irs.gov/pub/irs-pdf/f8332.pdf - should be filed with the noncustodial parent's tax return. The non-custodial parent should obtain that form signed by the custodian parent for specified years.
Please refer to the IRS publication 504 - http://www.irs.gov/pub/irs-pdf/p504.pdf


If a child is treated as the qualifying child of the noncustodial parent under the special rule for divorced or separated parents, only the noncustodial parent can claim an exemption and the child tax credit for the child.


However, the noncustodial parent cannot claim the child for head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, and the earned income credit. Only the custodial parent (or other eligible taxpayer) can claim the child as a qualifying child for these four tax benefits.

Lev :

You stated that you are the custodial parent. At the same time stated that split the days to 50/50.
Please be aware that is the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income.

Customer:

If so also work night shift. And the child is enrolled in school in my residence.

Lev :

That might help if your spouse will argue that he is the custodial parent.
But general determination will be based on the number of nights the child spent with each parent.

Customer:

I'm sorry, I meant I work night shift.

Lev :

That is OK - but the main question is sill the same - the number of nights the child spent with each parent - even you are not at home because you are working - and the child stays with your parent or someone else - but in YOUR home.

Customer:

Starting March 1, 2014 he and I will split the days. I get all Mondays and Tuesdays. He gets all Wednesdays and Thursdays. We alternate weekends. Should I go ahead and agree to his request for alternate years from tax exemption or just let the irs audit our taxes?

Lev :

That is up to you. But what you should consider - if the child will live with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income. So - you your spouse earns more money - he will be the custodial parent.

Customer:

Thank you.

Lev :

You are welcome.
Please take a moment and rate my answer - so I will be credited for my work.

Ask Your Own Tax Question
Just in case you were not able to use the chat - I am switching to Q&A mode and posting the answer below.
Please feel free to communicate if you need any clarification or have other tax related issues.

What you should consider - if the child will live with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income. So - if your ax spouse earns more money - he will be the custodial parent.
Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 30,331
Experience: Taxes, Immigration, Labor Relations
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