In most cases, a child of divorced or separated parents is the “qualifying child” of the custodial parent for EIC purposes. The “custodial parent” is the parent with whom the child lived for the greater part of the year.1

• 1I.R.C. § 152(c)(1)(B).

Even if a noncustodial parent may have been able to take a deduction or a tax credit for a “qualifying child” under I.R.C. § 152(e),1  the fact that a noncustodial parent may claim a child as a dependent under the general rules of the Tax Code does not automatically allow the noncustodial parent to claim that child for the EIC; these rules only allow the noncustodial parent to claim other child-related credits such as the childcare credit.

Many noncustodial taxpayers claim the EIC, believing that the same rules apply to all child-related credits. A state divorce or custody decree cannot change the federal requirements for the EIC. In order for a taxpayer to claim a dependent for the EIC, the dependent must reside in the taxpayer’s household for 6 months or more. As a result, few noncustodial parents will be eligible for the EIC. Many family law attorneys do not adequately explain this to their clients, leading noncustodial parents to wrongfully claim the EIC.

Nevertheless, a parent who meets the relationship, age, and residency tests should still get the EIC regardless of the custody arrangement.

Federal law deems the EIC to be the taxpayer’s separate property.2  One-time tax refunds are not “income” for the purposes of child support calculations.3

• 1See Section 9.4.
• 2Rev. Rul. 87-52, 1987-1 C.B. 347.
• 3La. R.S. 9:315(C)(3)(a).