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Who gets to claim the child care tax credit?

Los Angeles, CA |

My divorce was final in early 2010. The ex and I have 2 kids who are with me 5 nights a week & with the ex 2 nights a week. Dissolution Judgment states that I get to claim the youngest as my dependent on my taxes every year and the ex gets to claim the oldest as his dependent every year. We agreed that in lieu of paying child support directly to me, the ex would just pay all of the kids' child care costs directly to the provider. So, who gets to claim the child care write off/credit? I'm pretty sure that per the IRS, the kids are both my dependents (they're with me more than 50%), but I've agreed to waive my right to claim the oldest as a dependent. But can I claim the child care expenses paid directly by my ex for my youngest since his paying is only in lieu of direct child support?

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Attorney answers 1


Per IRS Publication 503, you get to claim the credit provided you meet all of the other tests.

Child of divorced or separated parents or parents living apart. Even if you cannot claim your child as a dependent, he or she is treated as your qualifying person if:
The child was under age 13 or was not physically or mentally able to care for himself or herself,

The child received over half of his or her support during the calendar year from one or both parents who are divorced or legally separated under a decree of divorce or separate maintenance, are separated under a written separation agreement, or lived apart at all times during the last 6 months of the calendar year,

The child was in the custody of one or both parents for more than half the year, and

You were the child's custodial parent. The custodial parent is the parent with whom the child lived for the greater number of nights in 2010. If the child was with each parent for an equal number of nights, the custodial parent is the parent with the higher adjusted gross income. For details and an exception for a parent who works at night, see Pub. 501.

The noncustodial parent cannot treat the child as a qualifying person even if that parent is entitled to claim the child as a dependent under the special rules for a child of divorced or separated parents.

Although the above response is believed to be accurate, it should not be relied upon as any type of legal advice because the information provided is incomplete. It is intended to educate the reader and a more definite answer should be based on a consultation with a lawyer. No attorney client relation is formed with me without a written contract.

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Robert J. Suhajda, MS,CPA
17721 Norwalk Blvd. #43
Artesia, CA 90701

Former financial auditor and controller. Admitted to US Tax Court, Income Tax, IRS representation, Fiduciary income tax returns, Estate and Gift tax returns,
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As a strategist, I analyze and integrate the operations, reserve study, budget, and financial statements into a unitary plan for 1 – 5 years, utilizing my experience as
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