Divorce can complicate a lot of tax matters, including the EITC. It's especially important to note that the rules for the EITC are not be the same rules as claiming a dependent, the child and dependent care credit or other tax benefits, so read carefully.

In most cases, a child of divorced or separated parents is the qualifying child of the custodial parent for purposes of the EITC because of the residency test. The custodial parent is considered the parent whose house was the primary residence for the child during the year. To figure this out, simply count the number of nights where the child slept during the year and the higher number rules. If a child didn't sleep at either parent's house for a night (say he was at a sleepover), you count that night by considering which parent the child would have stayed with except for the sleepover. If you can't figure that out, you call it a draw and no parent claims that night. And if a parent has an odd schedule which calls for him or her to work nights, you count the days instead of the nights (for school days, count the residence registered with the school).


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Divorce can complicate a lot of tax matters, including the EITC. It's especially important to note that the rules for the EITC are not be the same rules as claiming a dependent, the child and dependent care credit or other tax benefits, so read carefully.

In most cases, a child of divorced or separated parents is the qualifying child of the custodial parent for purposes of the EITC because of the residency test. The custodial parent is considered the parent whose house was the primary residence for the child during the year. To figure this out, simply count the number of nights where the child slept during the year and the higher number rules. If a child didn't sleep at either parent's house for a night (say he was at a sleepover), you count that night by considering which parent the child would have stayed with except for the sleepover. If you can't figure that out, you call it a draw and no parent claims that night. And if a parent has an odd schedule which calls for him or her to work nights, you count the days instead of the nights (for school days, count the residence registered with the school).

Because of the residency test, with respect to alternating the EITC, the parents can only alternate the EITC if they change the pattern of who has physical custody.

With respect to a noncustodial parent, the custodial parent may release the dependency exemption and the child tax credit to the noncustodial parent by use of the form 8332 (see the section on dependents), but not the EITC. To claim the EITC, the child must pass the residency test.

The confusion about the EITC, especially as it applies to divorced and separated parents, has lead to extra “due diligence” rules by the IRS. I highly recommend that you consult with a tax professional or the IRS (see the contact information at the end) if you have any questions about whether you can properly claim the EITC.

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