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FL income tax question about what I can file as?

Some background info. I'm am currently going through a divorce (it is not finalized yet). He moved out March of 2019. We have 2 kids so we agreed that we each claim one. What should I file as to get the most refund back?

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  • 2 months ago

    Florida doesn't HAVE an income tax.

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  • 2 months ago

    You can file as head of household if you meet ALL of these requirements:

    1. Your spouse moved out (separated) on or before June 30th and did not live with you at all between June 30th and December 31st.

    2. You have at least one dependent child who lived with you for over half of the year.

    3. You paid more than half of the cost of maintaining that child's home - this is computed for the entire year, so any money your husband spent toward maintaining the home between January 1st and the day he moved out is included in the calculation. Likewise if your husband continued paying some of the bills such as the mortgage or utilities even after moving out, then those are credited as housing support paid by him. Check IRS publication 501 for a more complete description of what counts as the cost of maintaining the home.

    This provision that allows married but separated person to use Head of Household status is refered to in IRS documents as being "considered unmarried" - if you think you qualify I suggest reviewing the rules carefully and/or talking to a tax pro because this provision is pretty strict. 

    Of course you could always just file a joint tax return and come to an agreement about how to split any refund - or put it into the joint assets and let it get split up when the divorce is finalized.

    As for splitting the kids if you do file separate you guys don't get to just ignore the dependency requirements because everyone agrees. The law is firm, and not subject to your negotiations.

    The tax law says that the dependency claim and all related tax benefits belong to the parent that the child actually lives with. You don't get to just ignore that rule. So if the children lived with you then he cannot claim them as though they lived with him.

    However, the law does allow you to give him the child tax credit - you would need to sign form 8332 and give it to him to file with his return. He ONLY gets the child tax credit for the child or children you give away with that form. He cannot claim head of household status, earned income credit, or childcare credits for that child. You would still be able to claim that child toward the earned income credit and for the child & dependent care credit (if you paid qualifying daycare expenses).

    Note that going forward after the divorce if you agree to allow him to claim one or both children in certain years then this is the same process - assuming you get custody and the children live with you the majority of the year.

    But BOTH of you are guilty of tax fraud if he lies about the child living with him and you omit that child from your return based on an agreement intended to help him get away with his fraudulent claim.

    It might be a good idea for both of you to sit down with a good tax pro this year and sort this all out to make sure that you're doing everything correctly.

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  • 2 months ago

    You should file an accurate return and live with whatever refund is due you.

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  • NA
    Lv 7
    2 months ago

    Critical question is where did the children sleep?  Where did your spouse sleep?

    If the children stayed with you AND your spouse left March 2019 and didn't come back for even one night AND you paid for more than half the cost of keeping up your home, you MAY be eligible to file as Head of Household (your spouse would file as MFS).

    That's great that you each agreed to claim one child, but if both children stayed with you, then you would fill out and sign a form 8332 that your spouse would attach to his tax return when he filed.  When you sign over form 8332, that gives the non-custodial parent the right to claim the child and the child tax credit if the child is under 17 years of age.

    The custodial parent retains eligibility for HOH, EIC and the Child Care credit.

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  • Shay
    Lv 7
    2 months ago

    Did you have any documents filed during 2019 that declares you are separated?

    If you have no documents filed declaring a separation, then you are still married and you will either need to file as married, filing joint and then divide the return or you will need to file as married, filing separately.  If you don't trust the soon to be ex spouse, then MFS may be your only choice.

    To file as HOH, you would need to have documented proof of the separation that is dated before the end of last year.

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  • 2 months ago

    Who claims the kids is irrelevant.

    What is relevant is where the kids actually live.

    If you did not spend even one night with him after 6/30/2019 and you supported yourself and a dependent, you can file as Head of Household for 2019.

    This is called the Abandoned Spouse Rule.

    Note for filing:  While the custodial parent can allow the non-custodial parent to claim a child as a dependent, things like Head of Household status and the Earned Income Tax Credit stay with the custodial parent.  

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