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Who gets to claim the child as a dependent?

As tax season approaches, it is probably time to review some tax and family law issues. Divorce and child custody disputes profoundly influence your taxes, and it is important to understand how they work, so you avoid the dreaded "audit." Who can claim your child as a dependent depends on two things? First, with whom the child spent the majority of the year. Second, if the time is equal (as in for joint custody), then whether the proper paperwork and coordination are done between the parents. This post will address both questions.

The IRS allows the "custodial" parent to claim the child as a dependent. The custodial parent is the one with whom the child spends the majority of the year. But, modern divorces often see both parents spending equal time with the children. Additionally, the IRS allows an exemption for parents who pay child support.

If you are not the custodial parent, you may claim your child as a dependent however it requires coordination from the other parent. To claim your child, you must be (1) divorced or legally separated, (2) the child must receive more than half of her support from both parents (i.e. the child isn't living with grandparents or another relative), (3) the child is in the custody of one or both parents for more than half the year and (4) the other parent signed a declaration stating that they will not claim the child as a dependent. You will need to attach this form to your tax return.

Under these rules, most non-custodial parents can claim their child but only if the other parent signs that form agreeing to relinquish the dependency. Usually, these issues are addressed in the divorce agreement however if the other parent refuses to recognize it, it could result in serious tax and family law issues.

If you are engaged in a child custody dispute, you may want to call a lawyer for assistance. Your concern is first and foremost with maintaining a relationship with your child, but it is important that you don't overlook the other financial and legal aspects of the custodial arrangement. As you can see, even your taxes are influenced by your divorce. An attorney can assist you in addressing these concerns and anticipating them before they are an issue.

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John T. Chamberlin, Attorney at Law
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