Q. - My wife and I are living apart, but we are not legally separated or divorced. Our child spends equal time at both of our houses. Can I participate in my employer's dependent care FSA and submit expenses for child care for reimbursement?
A. - It depends. We suggest that you consult a tax advisor. However, here are some basic guidelines to help you decide. We assume your child is under 13, your wife works, and the expenses are for care while both of you are at work.
If you and your wife are still filing joint tax returns and you claim your child as a dependent on your joint return, it is likely that you can submit the expenses for reimbursement from your FSA.
If you and your wife are filing separate tax returns, it might depend on who claims the child as a dependent. If you claim the child as your dependent on your tax return, it is likely that you can submit the expense for reimbursement from your FSA. If your wife is claiming the child as a dependent on her return, you may be able to claim the expense if the child is under 13, the child receives over half of her support from you, you and your wife have lived apart at all times during the last 6 months of the calendar year, the child is in your or your wife's custody for more than half of the year, and your wife signs a written declaration that she will not claim the child as a dependent for the year (and you attach this declaration to your tax return for the year).
