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A couple decides in April that they will divorce, and goes about establishing separate residences. There are three children. The plan is to have joint legal custody, with the kids alternating weeks between homes. Assuming that the separate residences get established before the end of May, what I think I see in this fact pattern is:

- The kids will live for more than half the year with each parent.
- The kids will live an equal amount of time with each parent.
- The parents will live apart for the last half of 2008.

It appears to me that in this situation, rather than living with MFS (or single, if the divorce is final by 12/31/08), this couple might be able to each file as HoH if they can agree about who gets which kids for filing purposes.

Unlike dependency exemptions, which the parents are free to split as they choose, the test for a qualifying person for HofH filing status relies solely on facts and circumstances. The parent filing as HofH must provide more than half the cost of maintaining the household, and the qualifying person must reside in the household more than half of the year, except for temporary absences. As I read the rules in the year of separation you look at only the time after the separation, assuming before that the child lived with both parents.

An exact 50/50 custody split would mean neither parent could file HofH since neither parent would have had a child more than half the year. Regardless of how things are written in the decree regarding joint custody, one parent usually winds up with the children most of the time.

Once one of the children is old enough to be away at school most of the year, if the parents are still single and speaking it would be pretty simple to move that child's primary residence to the other parent's home, thus entitling that parent to file HofH without disrupting the family unit any more than it already has been.

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