Married Filing Separately

[Rick]

Couple is going through a contentious divorce which will not finalize until
early 2024. They still will be legally married at end of 2023 and decide
independently that each will do a Married Filing Separately return. They
have one child between them and are fighting in the divorce over who will
get custody or if it will be shared custody. They each decide
independently to claim the child on their return. If they each file their
return around the same time, what will IRS do? Does the person whose return
is processed first get to claim the child? Or does the IRS initially
approve both and then later comes after one or both parties about both
claiming the same child?

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[ira smilovitz]

On Tuesday, December 12, 2023 at 10:43:42 AM UTC-5, Rick wrote:
> Couple is going through a contentious divorce which will not finalize until
> early 2024. They still will be legally married at end of 2023 and decide
> independently that each will do a Married Filing Separately return. They
> have one child between them and are fighting in the divorce over who will
> get custody or if it will be shared custody. They each decide
> independently to claim the child on their return. If they each file their
> return around the same time, what will IRS do? Does the person whose return
> is processed first get to claim the child? Or does the IRS initially
> approve both and then later comes after one or both parties about both
> claiming the same child?
>
> --

The question to answer is "which parent can claim the child as a qualifying child?" The IRS will allow the first to file (temporarily). When the second to file return is processed, the IRS will hold the second return (duplicate SSN) and request information from both parents to go through the tie-breaking rules to determine who is eligible to claim the qualifying child and associated tax benefits.

The first tie-breaker is "which parent did the child spend the most nights with?". If the parents are still living together, or the number of nights is equal, you move on to the next tiebreaker - "which parent has the higher AGI?". That person gets to claim the qualiying child and whatever tax benefits are available.

The IRS will adjust the first parent's return if it turns out the second-to-file parent is the eligible parent.

Ira Smilovitz, EA
Leonia, NJ