Divorce Form 8332 Needed?

[David1980]

I would think if parents are in agreement it's no problem obtaining an 8332. If parents are not in agreement it's going to go to the number of nights.

So, I'd have taxpayer ask ex for an 8332, even though it might not be required. I also understand those who wouldn't - why hold up a return for an unnecessary piece of paper if ex has agreed to not claim dependent.

I guess the hypothetical scenario I'd try to avoid is taxpayer says ex claims she won't claim child, but then ex files return and claims child.

[taxea]

The 6 month rule would be if they were simply separated but not divorced. I believe HOH would go to which of them paid the highest percentage of the annual cost of maintaining the home.

HOH is meant for single parents, not for married people who lived together or for non-married people who live together as though married and share a child.

[geekgirldany]

If anyone is interested this is what the NATP said on the HOH:

No, HOH cannot be split for one home for married taxpayers, which they were when the father lived there. The HOH goes to the home that the children lived in. In this case, they live with their mother all year and their father only part of the year in the home. You would have to look at the home as a whole for the year with the mother and part of the year with the father. The mother would be providing more since the children continued to live with her all year. If one of the children had lived with the father after the divorce, then yes, he could have claimed HOH easily. But because neither child lived with him after the divorce, no.

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They do not fit into the rules of married individuals considered unmarried because they were not apart for the last 6 months of the year so it disqualifies them. TaxEA is correct. NATP is correct.
I was trying to find a way to make HOH rules work for him but it can not be done.

Thank you all for taking the time to post and help me with this situation.

[kathyc2]

If anyone is interested this is what the NATP said on the HOH:

No, HOH cannot be split for one home for married taxpayers, which they were when the father lived there. The HOH goes to the home that the children lived in. In this case, they live with their mother all year and their father only part of the year in the home. You would have to look at the home as a whole for the year with the mother and part of the year with the father. The mother would be providing more since the children continued to live with her all year. If one of the children had lived with the father after the divorce, then yes, he could have claimed HOH easily. But because neither child lived with him after the divorce, no.

=======

They do not fit into the rules of married individuals considered unmarried because they were not apart for the last 6 months of the year so it disqualifies them. TaxEA is correct. NATP is correct.
I was trying to find a way to make HOH rules work for him but it can not be done.

Thank you all for taking the time to post and help me with this situation.

I disagree with their opinion. How do they know the mother paid more because they lived with her all year? And the fact that they were married part of the year makes no difference in my opinion. Following is from Pub 501, which puts into plain language IRC 2(b):



Head of Household


You may be able to file as head of household if you meet all the following requirements.


1.You are unmarried or considered unmarried on the last day of the year. See Marital Status , earlier, and Considered Unmarried , later.


2.You paid more than half the cost of keeping up a home for the year.


3.A qualifying person lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the qualifying person is your dependent parent, he or she doesn't have to live with you. See Special rule for parent , later, under Qualifying Person

#1- qualifies because of 12.31.16 he was unmarried
#2- if mother didn't work during the time they were married, it's quite possible he paid more than 1/2 of the annual expense
#3- this is met as you said they all lived together until August.

[Rapid Robert]

I have skimmed through some of the code citations provided, but since I only ever learned the UDC rules (began tax prep in TY2005), let me summarize what I think is being said, or rather, what I think is correct. I had these rules drilled into me as an instructor at H&R Block during those years, so I could in turn drill them into my students.

Under UDC, tax benefits for a child generally CANNOT be split between two individuals, which was the case prior to UDC. In other words, only one person can get EIC, CTC, dep. care credit, HOH, and dependency exemption based on a given child. If two or more people both have the same QC, they can agree, or the tie breaker rules can be applied, but once it is determined who the assignee (my term) is for the QC, it's an all or nothing package.

Form 8332 is NOT about tie breaker, or number of nights, or anything like that. Form 8332 is the primary exception to the "no splitting of benefits" rule. It allows the person who actually does claim the QC, to release SOME of the tax benefits listed above to the other parent. So Form 8332 is about allowing benefits to be split, not about determining who is the one taxpayer who is getting the "base" level of tax benefits for one child.

So it is a two-step process:

first, determine who is claiming the QC, based on agreement or tie-breaker rules, which might involve counting number of nights.

Then, decide, OPTIONALLY, if claiming parent wants to release some tax benefits to non-claiming parent. This only works for parents of the child, no one else. HOH, dep. care credit, and EIC cannot be released to the other parent, only the dependency exemption and Child Tax Credit.

[TaxGuyBill]

I agree with Kathy. Although it is more likely the mother paid for over 50% of the annual expenses for the children's home, it is possible the father did, in which case he could qualify for Head of Household.

[FEDUKE404]

Udc

I have skimmed through some of the code citations provided, but since I only ever learned the UDC rules (began tax prep in TY2005), let me summarize what I think is being said, or rather, what I think is correct. I had these rules drilled into me as an instructor at H&R Block during those years, so I could in turn drill them into my students.

Under UDC, tax benefits for a child generally CANNOT be split between two individuals, which was the case prior to UDC. In other words, only one person can get EIC, CTC, dep. care credit, HOH, and dependency exemption based on a given child. If two or more people both have the same QC, they can agree, or the tie breaker rules can be applied, but once it is determined who the assignee (my term) is for the QC, it's an all or nothing package.

Form 8332 is NOT about tie breaker, or number of nights, or anything like that. Form 8332 is the primary exception to the "no splitting of benefits" rule. It allows the person who actually does claim the QC, to release SOME of the tax benefits listed above to the other parent. So Form 8332 is about allowing benefits to be split, not about determining who is the one taxpayer who is getting the "base" level of tax benefits for one child.

So it is a two-step process:

first, determine who is claiming the QC, based on agreement or tie-breaker rules, which might involve counting number of nights.

Then, decide, OPTIONALLY, if claiming parent wants to release some tax benefits to non-claiming parent. This only works for parents of the child, no one else. HOH, dep. care credit, and EIC cannot be released to the other parent, only the dependency exemption and Child Tax Credit.

Ah, yes. I recall when current UDC rules came into play. For the "new" folks, it was more or less a matter of "learn these rules." But for the older "fossils" (like myself), the lectures pretty well turned into a "FIRST, just forget everything you thought you knew before. . ."

Thanks very much for such a clear explanation!

FE