Many people going through a divorce have questions about what to do come tax time with their dependent children. When and how a person can claim a child following a divorce can depend on a number of factors. The first step before you claim a child as a dependent is to make sure he or she fulfills certain basic criteria such as relationship and age, all of which are set forth by theInternal Revenue Service.
First, and likely most obviously, the child in question must actually be your child or a descendent of your child. This can be either through birth, adoption or foster parenting. The child in question is also allowed to be a sibling, half-sibling or step-sibling, or a descendant of any of these.
The child also needs to be younger than 19 (or 24 if he is a full-time student) and, again this is pretty obvious, younger than you. The only caveat to the age requirement is if your child is permanently disabled, in which case you can claim him as a dependent regardless of his age.
Beyond these two factors, the IRS also looks to the child's residency throughout the year. Typically, you are permitted to claim a child as a dependent if he or she resided with you for more than half of the year. Of course, in shared custody situations, this can become much more complicated. The residency requirement means that parents with primary custody of their child will be the ones that are able to claim them as dependents.
There are situations where a non-custodial parent can claim a child as a dependent if several additional factors are met. First, the parents must be legally divorced, separated under a written separation agreement, or living separately for the at least the past six months. Second, the child must have received more than half of his financial support over the year from his parents. Third, the child must have been in the custody of one or both of the parents for more than half of the year. Fourth, the custodial parent who would otherwise be able to claim the child must sign a form declaring that they will not claim that child as a dependent for that year. The non-custodial parent must then attach this declaration to her tax return.
Determining exactly what this means, the “non-custodial parent,” can get tricky. According to IRS rules, the custodial parent is the parent with whom the child lived for the greater number of nights in the year. If the parents separated during the tax year in question, and the child lived with both parents prior to their separation, then the custodial parent is the one with whom the child lived for the greater number of nights after the separation.
In the rare event that a child spent an exactly equal number of nights with both parents, then, perhaps bizarrely, the custodial parent is deemed to be the one with the greater adjusted gross income.
If you find yourself worrying about the financial repercussions of divorce, you need the help of an experienced South Carolina family law attorney to guide you through the complicated process.