Divorce, Kids and Taxes: Which Parent Claims Dependents if the Decree is Silent?

While few of us look forward to filing our taxes, newly divorced parents probably dread it more than most. Filing individual tax returns post-divorce raises the thorny question of which parent may claim a child as a qualifying dependent. Most of the time, a divorce decree or parenting plan will list specifically who can claim the kids, but if not you’ll need to dig deeper. Here are some steps for how to determine who claims the kids.

  1. Review your divorce decree and parenting plan (i.e. custody agreement) to see if it addresses the issue, even if you don’t remember discussing it during the divorce proceedings.
  2. Visit Carefully read and follow the IRS rules pertaining to dependents.
  3. Take the relationship test to determine who is a qualifying child or relative. They must meet the criteria for relationship, age, residency, income and more to qualify as your dependent.
  4. According to the IRS, the custodial parent–the one the children live with for more than half of the year–has the right to claim them on a tax return absent other language in your divorce decree or parenting plan. Be sure to read all of the exceptions listed by the IRS in order to calculate the number of days correctly.
  5. If you and your ex share custody 50-50 (i.e. the child spent an equal number of nights with each of you during the tax year), and your divorce decree is silent, then the IRS considers the parent with the higher adjusted gross income (AGI) to be the custodial parent under the “tiebreaker rule”.
  6. HOWEVER: the non-custodial parent may claim the child if several conditions are met. Be sure to review the section “Children of divorced or separated parents (or parents who live apart).” Among these conditions, the custodial parent must sign a declaration agreeing not to claim the child as a dependent for the year.

As you can see, determining which parent may claim a dependent can be complex. This is information only and not to be construed as tax or legal advice.  Consult your accountant or tax professional for detailed advice on filing, claiming dependents, and other related tax issues. 

With a combined 30 years in family law, the attorneys at Jones Family Law Group, LLC, will provide the legal guidance you need. Check out our website for more information, and be sure to follow us on social media, including Facebook, Twitter, Instagram and LinkedIn. Share our articles with others! For questions or to schedule a confidential consultation, contact us.