Head of Household under a Divorce Agreement

[taxgirl0216]

I have a client who is divorced. Per the divorce agreement, the ex spouses have agreed to switch off years claiming the child on their tax return. Does this mean that whichever parent who takes the child that year gets HOH? Looking at tax law, it seems that HOH always goes to the custodial parent (even if its not their year to take the child as a dependent). They would still get HOH rates but not the child tax credit in the year that they don't get to claim the child.

Then I have the issue of determining who is the custodial parent between the two of them. The client won't budge in saying the child stays 50/50 at both houses (even though I explained that there are 365 days in a year, so there's one extra night)

If I went by the AGI test - then my client makes more income and would be the custodial parent under 50/50 leap year rules.

So my first question: Does HOH follow who claims the child or the custodial parent when there is a divorce agreement?

Question 2: Would you consider my client the custodial parent?

My worry is that if I claim him as HOH, and then the ex wife claims HOH because its her turn to claim the child - then we get kicked with two people claiming HOH on the same child.

[TAXOH · Accepted solution]

Custodial parent gets HOH.  How old is the child?  If they are of school age, whose address is used at school?

[jeanmarc]

I know this is an old question but most cutodial or divorce agreements will specify who is considered the custodial parent; which home is considered the child's primary home.

[lbones]

Custodial parent is considered HoH.  Other parent is single with a dependent due to a separation or divorce and must have the custodial parent provide form 8332 releasing the dependent child to them for tax purposes regardless of what the divorce decree says.

I always have my clients provide me with a calendar showing which nights they had the child with them and then go through the tie breaker rules.  On occasions had to do a paper return with the backup attached showing they were in fact the custodial parent.

If your client had the dependent 51% of the time, then your client is the custodial parent.  If is it 50 - 50 go to the tie breaker rules.  It can get messy between the parents.

[THEOLDTAXLADY]

ACCORDING TO THE IRS, WHEN THERE IS A 50/50 ARRANGEMENT, HEAD OF HOUSEHOLD IS DETERMINED BY THE PARENT WITH THE LARGEST GROSS INCOME.

WHAT ABOUT MILITARY?  HE IS OUT TO SEA 6 MONTHS AND HAS OVER $15,000 LARGER INCOME.  HE SATISFIES THE INCOME FOR HOH BUT NOT THE TIME FACTOR ALTHOUGH HE KEEPS A HOME IN THE STATES.