Which Parent Claims a Child on Taxes After Divorce?

Generally, the IRS rules only allow one parent to claim the child as a dependent on his or her taxes. Per the IRS, the primary custodial parent is the one who is eligible to claim the minor child as a dependent on their taxes each year. The primary custodial parent is the parent with whom the child spent the most overnights that tax filing year. It is not permitted for both parents to claim the same child on their taxes in the same year. There are many nuances to these IRS rules, so it is best to discuss your tax situation with your tax professional or CPA. Your family law attorney is not a tax expert. Family law attorneys commonly address this issue within the parents’ Separation Agreement, however, so this is one situation where tax law and family law are interconnected.

If you share equal parenting time of the child with the child’s other parent and there is not one primary custodial parent, the IRS rules dictate that the parent with the higher Adjusted Gross Income (“AGI”) claims the child as a dependent on their taxes. If the parents make an equal amount of money, then there are other agreements you can make to resolve the issue of which parent claims the child as a dependent. It is best to address these issues in your Separation Agreement prior to your divorce. One solution is that you and your co-parent agree to alternate yearly who claims the minor child as a dependent. For instance, Mother claims the child in odd-numbered years and Father claims the child in even-numbered years. If there are two children, you could agree that one parent claims one child each year. If there are three or more children, you can agree on an alternating schedule so that each parent claims at least one child as a dependent each year.

It may be necessary for one parent to complete the IRS Form 8332, the “Release of Claim to Exemption for Child by Custodial Parent,” in order for the other parent to be permitted to claim the child as a dependent pursuant to the parents’ Separation Agreement.

​If this is confusing, it’s not just you! Family law matters can be very complicated. If you need an family law attorney to guide you through this process, please reach out to schedule a consultation.    

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