Which Parent Can Claim the Child as a Dependent on His/Her Income Tax Returns?
From The Oregon Divorce Blog:
Clients often come to me asking whether they or their ex-spouse/unmarried parent of their child can claim their joint child as a dependents for tax purposes and receive the dependent tax exemption. They often think that this is a decision that is up to them and attorneys often use it as a bargaining chip.
In a divorce or custody case I am representing clients in state court. The United States Congress, through the tax code, has determined how the child/dependent tax exemption should be awarded. The supremacy clause of the United States Constitution prevents state courts from deciding issues of federal law. This means that a state court cannot properly award the exemption to a parent who otherwise would not qualify for the exemption under federal law.
The qualifying parent under IRS rules is the “custodial parent,” which is defined as “the parent having custody for the greater portion of the calendar year.” The award of “legal custody” has no effect on this definition, rather the custodial parent is “the parent with whom the child resides for a greater number of nights during the calendar year.” In cases where the child resides an equal number of overnights with each parent, the parent with the higher adjusted gross income for the calendar year is awarded the exemption.
Parties can agree to share the exemption or to have the parent that does not qualify receive the exemption. This is usually accomplished by a provision in the parties’ judgment. In order to provide the non-qualifying parent with the exemption, the qualifying parent must sign a written declaration and the declaration must be attached to the non-custodial/non-qualifying parent’s income tax return. This can be completed using IRS tax form 8332, which can be found here http://www.irs.gov/pub/irs-pdf/f8332.pdf.
A decision to allocate the dependent exemption to the non-qualifying parent should not be taken lightly. In addition to the exemption, the non-qualifying parent will also receive the child tax credit. Therefore, an agreement to deviate from IRS rules can have significant tax impacts for the qualifying parent and creat a tax windfall for the non-qualifying parent. If the agreement will be included as a provision in a judgment, the decision to do so should be carefully discussed with your attorney.
The IRS Frequently Asked Questions located at http://www.irs.gov/faqs/faq-kw46.html provides detailed information on this question.
Source: "Who Gets to Claim the Child Tax Exemption?" by Sean Stephens, published at The Oregon Divorce Blog.
Clients often come to me asking whether they or their ex-spouse/unmarried parent of their child can claim their joint child as a dependents for tax purposes and receive the dependent tax exemption. They often think that this is a decision that is up to them and attorneys often use it as a bargaining chip.
In a divorce or custody case I am representing clients in state court. The United States Congress, through the tax code, has determined how the child/dependent tax exemption should be awarded. The supremacy clause of the United States Constitution prevents state courts from deciding issues of federal law. This means that a state court cannot properly award the exemption to a parent who otherwise would not qualify for the exemption under federal law.
The qualifying parent under IRS rules is the “custodial parent,” which is defined as “the parent having custody for the greater portion of the calendar year.” The award of “legal custody” has no effect on this definition, rather the custodial parent is “the parent with whom the child resides for a greater number of nights during the calendar year.” In cases where the child resides an equal number of overnights with each parent, the parent with the higher adjusted gross income for the calendar year is awarded the exemption.
Parties can agree to share the exemption or to have the parent that does not qualify receive the exemption. This is usually accomplished by a provision in the parties’ judgment. In order to provide the non-qualifying parent with the exemption, the qualifying parent must sign a written declaration and the declaration must be attached to the non-custodial/non-qualifying parent’s income tax return. This can be completed using IRS tax form 8332, which can be found here http://www.irs.gov/pub/irs-pdf/f8332.pdf.
A decision to allocate the dependent exemption to the non-qualifying parent should not be taken lightly. In addition to the exemption, the non-qualifying parent will also receive the child tax credit. Therefore, an agreement to deviate from IRS rules can have significant tax impacts for the qualifying parent and creat a tax windfall for the non-qualifying parent. If the agreement will be included as a provision in a judgment, the decision to do so should be carefully discussed with your attorney.
The IRS Frequently Asked Questions located at http://www.irs.gov/faqs/faq-kw46.html provides detailed information on this question.
Source: "Who Gets to Claim the Child Tax Exemption?" by Sean Stephens, published at The Oregon Divorce Blog.
Question regarding child tax exemptions, my exwife and I agreed in the written divorce agreement to share our two kids as exemptions. I have been divorced for 5 years, the first 3 years my ex complied with the written agreement. It has come to my attention via the IRS that the last two years she has claimed both children and has reassured me verbally she has not. It has come as penalties toward me in the excess of $4000. I spoke to my lawyer on this matter and he recommended getting the ex to allow me to claim both kids for the following years until the difference is made up. She has denied and will not work with me on this. Which leaves me only one other option , which is to take her to court for the retribution of losses. She does not work, and I have been working two jobs including a teaching position at night just to keep afloat, is there any other possible action I might take to correct this issue?.
I have claimed my daughter on my taxes since the divorce. This year she will be 18 in July 2009 and going off to college this fall. Child support ends with 18th birthday. For 2009 taxes which parent claims this daughter on their taxes. I will be participating in her college expenses along with still covering her health insurance.
my ex i have split up when we were living together he was claiming the kids now that we no longer live together i have been claiming the kids but he wants me to let him claim them cause he says if i dont then he will have to pay back the government. The kids live with me about 95% of the time. Am i entitled to carry the kids. And if he carrys them without my permission what can i do about it.