Maryland Divorce Lawyer Blog
Which parent claims a child for tax purposes is often a disputed issue between parents, both before a custody order is in place and afterward, if it has not been specifically addressed by a written agreement or court order. Here are a few key considerations to discuss with your tax professional.*
To claim your child on your tax return as a divorced spouse or parent in a separate household, you need to meet the IRS requirements to claim your child and ensure you have the proper documentation to support the requirements.
1. Determine if You Are Eligible to Claim the Child Under IRS Guidelines
- You must meet the IRS criteria:
- The child must live with you for more than half the year
- You must provide more than half of the child’s financial support for the year
- The child must be under 19 years old (or under 24 if a full-time student)
- You cannot be married to the child’s parent and filing separately (unless you qualify for Head of Household)
- The child cannot be claimed by anyone else
If you believe you meet the IRS criteria gather all documentation to support your claim, i.e. court documents, calendar of access with each parent, financial support provided for the child.
2. Check Your Marital Settlement Agreement, Parenting Plan, Custody Order, and/or Judgment of Absolute Divorce
If your most current Marital Settlement Agreement, Parenting Plan, Custody Order, or Judgment of Absolute Divorce states who can claim the child for tax purposes, follow that Agreement or Order. Often, parents in separate households alternate the exemption on an odd and even tax year basis.
If the Marital Settlement Agreement, Parenting Plan, Custody Order, or Judgment of Absolute Divorce gives the exemption to the other parent, you cannot claim the child unless they agree to release the exemption to you and they complete the necessary IRS forms to do so.
Do the Below Circumstance(s) Apply to You?
1. You are the Custodial Parent and there is not a Marital Settlement Agreement, Parenting Plan, Custody Order, or Judgment of Absolute Divorce addressing this issue:
The custodial parent (the one with whom the child resides more than one-half of the tax year) usually gets to claim the child.
Talk to your tax professional to see if you can claim the Head of Household filing status if eligible, which may provide a larger standard deduction and ask if there is a Child Tax Credit for which you qualify.
2. You are the Non-Custodial Parent and there is not an Agreement or Order in place addressing the Exemption:
You can only claim the child if the custodial parent signs IRS Form 8332 (Release of Claim to Exemption).
Typically, without this form, the IRS will not allow you to claim the child even if the Agreement, Order, or Judgment says you can.
Contact Monica Scherer
For more information or questions about your specific circumstance, please contact Monica Scherer and the Silverman Thompson family law team at mscherer@silvermanthompson.com or toll-free at 800-385-2243.
*Silverman Thompson does not hold themselves out as being experts in tax-related matters, and therefore it is recommended that before any action is taken you should receive competent tax advice from an independent tax professional.