Filing Status
This is archived information that pertains only to the 2002 Tax Year. If you
are looking for information for the current tax year, go to the Tax Prep Help Area.
My wife and I have been separated since May. She has one child (grandchild) living with her. Can we both file as single?
You and your wife can either file as married filing jointly, or married filing separately. Your wife might qualify as head of household since the grandchild may be a qualifying person for that status. If she does, you would have to file as married filing separately. Refer to Publication 501 (PDF), Exemptions, Standard Deduction, and Filing Information, for more information.
References: If I moved out of my house on July 1, but was not divorced at the end of the year, can I file as head of household and take the earned income credit if I have a minor child? Can I also claim child care expenses?
You do not qualify for the Child and Dependent Care Credit or the head of household filing status because you left your spouse on July 1, you have not lived apart for the last 6 months of the taxable year and are not considered unmarried. Your filing status for the year will either be married filing separately, or married filing jointly. If it is married filing separately, you will not qualify for the Earned Income Credit.
References: I am divorced and pay child support. My children live with their mother and she claims them on her tax returns. Can I claim head of household?
You can only file as head of household if you meet all of the following requirements: - You are unmarried or considered unmarried on the last day of the year.
- You paid more than half the cost of keeping up a home for the year.
- A qualifying person must live with you in the home for more than half the year (except for temporary absences such as school). Refer to Publication 501 (PDF), Exemptions, Standard Deduction, and Filing Information, for more information.
References: - Publication 501 (PDF), Exemptions, Standard Deduction, and Filing Information
I am divorced with one dependent child. This year my ex-spouse will claim the child as an exemption. Does this mean I cannot qualify as head of household?
You can file as head of household even though you do not claim your unmarried dependent child as an exemption if you meet all of the following requirements: - You are unmarried or considered unmarried on the last day of the year.
- You paid more than half the cost of keeping up a home for the year.
- A qualifying person must live with you in the home for more than half the year (except for temporary absences such as school). Refer to Publication 501 (PDF), Exemptions, Standard Deduction, and Filing Information, for more information.
References: 2.3 Filing Requirements/Status/Dependents/Exemptions: Dependents & Exemptions How do you claim a child if you agree with your ex-spouse to claim him 6 months and he claims him the other 6 months of the year?
The dependency exemption can not be split. The parents need to decide who will claim the child. The parent relinquishing the dependent should sign a Form 8332 (PDF), Release of Claim to Exemption for Child of Divorced or Separated Parents, provide it to the claiming parent, and thus authorizing him or her to claim the exemption. The claiming parent would then need to attach the Form 8332 to his or her tax return. Please be aware that if you relinquish the exemption, you are also relinquishing eligibility for the Child Tax Credit.
In the absence of a Form 8332, the special rule for children of divorced or separated parents usually gives the dependency exemption to the custodial parent (the parent who has custody for the larger part of the year). Under the special rule, the parent who had custody of the child for the greater part of the year (the custodial parent) is generally treated as the parent who provided more than half of the child's support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if certain conditions are met.
Refer to Publication 501 (PDF), Exemption, Standard Deduction, and Filing Information or Publication 504 (PDF), Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents.
References: My 7 year old son lived in my household for seven months of the year, and I provided all of his support. I paid child support to his other parent for the other five months. Can I claim my son as a dependent and for a child tax credit without Form 8332?
There is a special rule for children of divorced or separated parents, which usually gives the dependency exemption to the custodial parent. The custodial parent is defined as the parent who has custody of the child for the greater part of the year. If you can claim your son as a dependent and he is under age 17 at the end of the tax year and a citizen or resident of the United States, you may be able to claim the Child Tax Credit.
Under the special rule, the parent who had custody of the child for the greater part of the year (the custodial parent) is generally treated as the parent who provided more than half of the child's support. This parent is usually allowed to claim the exemption for the child if the other dependency tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if certain conditions are met.
Refer to Publication 501 (PDF), Exemption, Standard Deduction, and Filing Information or Publication 504 (PDF), Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents.
You can claim your son without Form 8332 (PDF), Release of Claim to Exemption for Child of Divorced or Separated Parents, but if both parents claim the child as a dependent, both returns will be subject to further IRS review.
References: What is the tax form number for the custodial parent to sign that allows the noncustodial parent to use the child as a dependent?
The custodial parent should use Form 8332 (PDF), Release of Claim to Exemption for Child of Divorced or Separated Parents, or a similar statement, to make the written declaration to release the exemption to the noncustodial parent. The noncustodial parent must attach the form or statement to his or her tax return. Please be aware that if the custodial parent relinquishes the exemption, that parent also relinquishes eligibility for the Child Tax Credit.
References: I have a court order that says I have the tax exemption for my minor child until further order of the court. Can I just send a copy of the court order with my prepared taxes or do I have to have a waiver signed by the other parent?
If your divorce decree or separation agreement went into effect after 1984 and it states you can claim the child as your dependent without regards to any condition, such as payment of support, you can attach a copy of the following pages from the decree or agreement instead of Form 8332 (PDF), Release of Claim to Exemption for Child of Divorced or Separated Parents. - Cover page (write other parents social security number on this page).
- The page that states you can claim the child as a dependent.
- Signature page with the other parent's signature and the date of the agreement.
If the court order that you are referring to in your question is not a divorce decree or separation agreement and is not a modification to an existing divorce decree or separation agreement, then Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, must be attached to your tax return.
References: What needs to be done in order to rescind a Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents?
The consent of both parents is required in order to revoke Form 8332 (PDF), Release of Claim to Exemption for Child of Divorced or Separated Parents. If both former spouses try to claim the child as a dependent, both returns will be subject to further IRS review.
References: My divorce decree states my ex-spouse is allowed to claim one of our two children that live with me. He is very behind in child support so can I claim both children?
The answer depends on the year of the divorce decree and its exact wording. - If the divorce decree states that your spouse must pay child support to claim the child as a dependent and if the child lived with you for more than half the year, then you can claim the child as a dependent on you return. If the divorce decree was executed after 1984 and it unconditionally entitles your spouse to the exemption, then your spouse gets to claim the child as a dependent.
- If the divorce decree that entitles the noncustodial parent to the exemption was executed prior to 1985 (and not modified) and the noncustodial parent paid at least $600 of child support, then the noncustodial parent gets to claim the child as a dependent.
Please refer to Publication 504 (PDF), Divorced or Separated Individuals, for more information.
References: In a divorce decree, can a court order determine who takes a child for a deduction? Does the court order supersede the IRS requirements?
If the court order is not a divorce decree or separation agreement and it is not a modification to an existing divorce decree or separation agreement, then the "Support Test for Divorced or Separated Parents" will apply. Refer to Publication 501 (PDF), Exemptions, Standard Deductions, and Filing Information, for details. If the court order is a divorce decree or separation agreement, the answer would depend on the year of the divorce decree and its exact wording. Please refer to Publication 504 (PDF), Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents. a complete discussion of the special rules.
References: 3.4 Itemized Deductions/Standard Deductions: Interest, Investment, Money Transactions (Alimony, Bad Debts, Applicable Federal Interest Rate, Gambling, Legal Fees, Loans, etc.) I went through a divorce last year and paid a lot of legal fees. Are these deductible on my tax return?
Legal fees incurred or paid for a divorce are personal in nature, and are not generally deductible. However, legal fees incurred or paid for the production or collection of taxable income may be deductible. You may deduct legal fees for collecting alimony because alimony is taxable income. These deductions are taken on line 22 of Form 1040, Schedule A (PDF), Itemized Deductions. For additional information, refer to Tax Topic 508, Miscellaneous Expenses, and Publication 529 (PDF), Miscellaneous Deductions.
References: Can I deduct alimony paid to my former spouse?
If you are divorced or separated, you may be able to deduct the alimony or separate maintenance payments that you are required to make to your spouse or former spouse, or on behalf of that spouse. For additional information, refer to Tax Topic 452, Alimony Paid (this topic covers alimony under decrees or agreements after 1984; and Publication 504 (PDF), Divorced or Separated Individuals.
References: 3.7 Itemized Deductions/Standard Deductions: Other Deduction Questions My spouse and I are filing separate returns. How can we split our itemized deductions?
If you and your spouse file separate returns and one of you itemizes deductions, the other spouse will have a standard deduction of zero. Therefore, the other spouse should also itemize deductions.
You may be able to claim itemized deductions on a separate return for certain expenses that you paid separately or jointly with your spouse. Deductible expenses that are paid out of separate funds, such as medical expenses, are deductible by the spouse who pays them. If these expenses are paid from community funds, the deduction may depend on whether or not you live in a community property state. In a community property state, the deduction is, generally, divided equally between you and your spouse. For more information refer to Publication 504 (PDF), Divorced or Separated Individuals; and Publication 555 (PDF), Community Property.
References: 7.1 Child Care Credit/Other Credits: Child and Dependent Care Credit & Flexible Benefit Plans My divorce decree states that my ex-spouse can claim our daughter as an exemption on alternate years. I am the custodial parent and pay child care expenses. Can I claim child care expenses on the years he takes the exemption?
The Child and Dependent Care Credit can only be claimed by the custodial parent. This is true even if you cannot claim the child's exemption because the divorce decree allows the other parent to claim the exemption, or you have released the exemption on Form 8332. Refer to Publication 503 (PDF), Child and Dependent Care Expenses, for a complete discussion.
References: 7.2 Child Care Credit/Other Credits: Child Tax Credit Can a custodial parent claim the Child Tax Credit if the noncustodial parent claims the child as a dependent due to the divorce agreement?
The custodial parent cannot claim the Child Tax Credit for a child in the tax year that the noncustodial parent takes the exemption for that child. Please refer to the 1040 Instruction Booklet index for the Child Tax Credit. The referenced pages will explain who qualifies for this credit and how to calculate it.
References: 7.4 Child Care Credit/Other Credits: Hope & Life Time Learning Educational Credits A divorced father pays college tuition directly to the college for his child who is claimed as a dependent on his ex-wife's return. Is the divorced father eligible for either of the educational credits - Hope or Lifetime Learning?
No. The divorced father cannot claim an educational credit because he does not claim the child as a dependent. The ex-wife, however, can claim an educational credit because she is claiming the child as a dependent and, under a special rule, is treated as having paid the child's tuition. The child cannot claim the credit because he is being claimed as a dependent on his mother's return.
References:
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