Joint-Child Custody

[ncnurse2006]

What is the name of your state? North Carolina

Okay I have joint legal child custody with my ex husband whom I am recentally filing a motion to modify the order but for now we have joint legal custody and neither one of us pay childsupport. I have claimed my son every year but 2005 tax year.(Last year) This year I think that I should claim my son since he has a new wife and another child which will cause him to have 3 children..You can claim no more then 2 a year to get the earned income credit so I let him know that I would claim my son and we will split the money. He disagrees. Could anyone help with any advice about what I should do? I have contact the IRS with no relief. I want to do this legal and not break any laws. Help if any way at possible would help.
Thanks!

 

[ceara19]

Who has residential custody?

 

[ncnurse2006]

Residental Custody

WE both do! He has him during the school year with me getting him from Thursday to Sunday and I have doing the summer months with him getting him Thursday to Sunday.

Who has residential custody?

 

[ceara19]

WE both do! He has him during the school year with me getting him from Thursday to Sunday and I have doing the summer months with him getting him Thursday to Sunday.

From the IRS website:
In order to claim a child for the purpose of EIC,

the child must have lived with you in the United States for more than half the tax year.

Without sitting down with a calendar and counting the number of days you had the child in 2006, it seems like dad actually has the child for the majority of the time (although, not by much). Even IF you each had the exact same amount of time with the child:

The parent with the highest AGI if the child lived with each parent for the same amount of time during the tax year

It would come down to WHICH of you earned the most money in 2006.

 

[LdiJ]

Ceara is absolutely correct regarding EIC. It may be that neither of you are technically eligible to claim the child for EIC purposes. He would not be because he already has two children for EIC purposes, and you may not be because the child didn't live with you more than six months of the year. (by days)

However, it would still be possible for you to claim the child for the purpose of the dependency exemption and the child tax credit. Its quite possible that it does not actually benefit dad to claim the child, or benefits dad very little....it all depends on his income.

In the case of divorced or separated parents they do have the right to make agreements regarding who would claim the child. The rules that the child should be claimed by the parent with the higher AGI (if time is equal), or the parent with primary residential custody (if one parent has more time than the other) only kicks in if there is a duplicate claim or you don't agree.

I would recommend that you sit down with dad and explain to him that claiming the child may not actually give him any benefit. Suggest that he run his number both with and without the child to see if it really makes any difference to him, before fighting with you over the exemption.

However, you should also be aware that he and his wife may not be intending to file as married. Its illegal as heck, and stupid as heck, but there are alot of married people out there who do not follow the rules and file as unmarried, therefore receiving EIC and other credits that they are not legally entitled to receive. Its stupid because the chances of getting caught these days are getting higher and higher....and the cost is dramatic if they get caught.