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Who Gets to Claim the Kids When Filing Taxes?

claim children taxes

As the countdown to file your tax return winds down to the April 15 deadline, the pressure builds as thousands of taxpayers contend with the vital issue of claiming dependents on taxes after divorce.

Divorce procedures are financially and emotionally straining enough, but often, new divorcees are caught in a battle with their ex-spouses come tax time. Claiming dependents comes with a tax deduction that lowers one’s financial obligation to Uncle Sam.

However, when disputes arise over who can rightfully claim the children as a tax exemption, determining the legal requirements of claiming dependents becomes integral in shifting the exemption in your favor.

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What’s at Stake When Claiming Dependents

For divorced taxpayers, there is much at stake when claiming dependents as a tax exemption.

Claiming a qualifying child (i.e. a dependent) grants parents a subtraction of $3,950 per child from their 2014 adjusted gross income (AGI). This is no trivial tax break, especially when multiple children are in question.

The trying factor, however, is that each child may only be claimed once, per federal regulation — meaning that one parent will reap the financial rewards of claiming the child, while the other gets nothing (regardless of any child support provided).

Who Can Legally Claim the Kids?

In decades past, claiming children on taxes was a fairly simple deal. Whomever the child lived with permanently got dibs on claiming the exemption. With the rise of divorce rates and evolving divorce conditions, like joint custody and long-term vacation visits, understanding which parent can claim the kids has become a bit more convoluted.

Typically, the first point of research are the divorce filings. If the terms of the divorce clearly identify a custodial parent (the parent who holds primary custody over the child), then that parent is legally entitled to claim any children as dependents on his taxes if they also pass five qualifying child tests.

Related: 9 Tax Questions Every Single Parent Should Ask

Qualifying Child Tests for Claiming Dependents

In addition to knowing whether you’re within your right as a custodial parent to claim your child on your taxes, you’ll also need to pass five tests required by the IRS to validate that your request for a dependent exemption actually qualifies you to make that claim:

  • Relationship: The dependent must be your son, daughter, foster child or descendant (e.g. grandchild), or your brother, sister, step-sibling, or extended descendant (e.g. nephew).
  • Age: The child must have been under 19-years-old and younger than you, or have been under 24-years-old, a full-time student and younger than you in 2014. Tax filers also meet this test requirement if the child was “permanently and totally” disabled last year, regardless of age.
  • Residency: The child must have lived with you more than 50 percent of the year.
  • Support: The child must have not provided more than 50 percent of his own support.
  • Joint filing: The child must not be filing a 2014 joint tax return. An example of this may occur if the child got married last year and intends to file a joint tax return with his spouse.

These standardized qualifying relative tests help guide divorcees when claiming children on taxes. In many cases, however, the delineation isn’t so clear, especially in the case of shared custody.

Claiming Dependents Under Joint Custody

Some divorce scenarios leave parents with a 50-50 joint custody agreement. These circumstances are where the most trouble arises, as there is sometimes no written determination as to who is permitted to claim the children on taxes after the divorce.

Regardless of the divorce custody arrangement (i.e., primary custody versus joint custody), the fact still stands that children can only be claimed as a dependent by one person each year.

Options for Claiming Dependents in Joint Custody Arrangements

While not the ideal tax solution for all parties involved under joint custody, there are still options available when claiming children on taxes. These two suggestions are the most popular ways to resolve the issue:

  • Alternate years. A common remedy for the exemption tug-of-war is for parents to alternate years when they claim their child. For the 2014 tax season, parent A can claim the dependent and the following year parent B can do the same. This swapping ensures that both parents receive equal financial benefit from the exemption.
  • Divide up the kids. In the case of claiming multiple children, it can get confusing to keep track of which parent gets to claim which child each year. A way to address this is to split dependents evenly between divorcees. For example, parents with four children in total can claim the same two children each year to avoid a mix-up.

Since both parents above can legally claim their children on taxes due to the joint custody agreement, the parent who is waiving his right to claim the children for the year will need to sign form 8332, releasing the exemption to the filing parent.

Similarly, in a non-joint custody arrangement, the primary custodial parent may relinquish the exemption to the non-custodial parent at his own discretion by signing form 8332.

Parents claiming dependents will then need to attach this form to their 2014 tax returns to complete the process of claiming dependents.

Do Your Homework When Claiming Children on Taxes

When addressing the issue of claiming children on taxes, it’s important to go through the motions and research your rights. This exemption like other tax breaks or tax deductions are heavily scrutinized by the IRS.

Getting over the hurdle of a divorce and determining dependency exemptions is challenging enough, so don’t invite further hardships by risking an audit. In the event that your taxes are put under the magnifying glass, have the supporting paperwork organized and on-hand to prove your case.

Photo credit: Travis Swan

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  • Lisa

    My husband and I are still married. We have 2 daughters on 2011 taxes we could only file with our youngest child because someone else claimed our oldest one? Dont know how thats possible but liberty tax in ohio said they would file for my other child once we brought in verification of birth records, ssn, schhol records, we did that and no return yet. Its now getting 2012 taxes and when I call liberty tax in ohio, the manager is always with a client and will call me back..lol just want to know how I can find out if they filed our daughter, we are now stationed in cali. So only form of contact is byy phone.

    • Liberty Tax Corporate

      Lisa- Please contact Liberty Tax Customer Care at 800-790-3863

  • Bethany

    When my ex husband and I got divorced, my 2 children and I were legal residents of California and my ex a legal resident of another state. Since our divorce took place in the other state, that state had no jurisdiction to give either sides any type of custody rights. I only became the sole decision maker for the children. Through the divorce process the judge set it in our divorce documents for each of us to claim a child on our taxes every year. Both of my children are with me about 80% of the year. Is he still able to legally claim one of my children even though they live with me all year?

  • help a mom

    I have 50 custody of my son but the father has him a bit more throughout the year. I want to claim my child but he wont let me. He said his mom will claim our son. He doesnt have a job. Would this help me get the upper hand?

  • susan

    if the decree has one claiming custody in alternating years does the first year, 2013, count as the odd year?

  • brian

    If decree claims alternating years, does mother have the right to change this without going to court? She had son 2 more nights in 2013 than I did. She wants to claim him from here on out even though court document states otherwise.

  • Amanda

    It is my ex’s year to claim daughter, is it legal for his girlfriend to claim my child? He has worked all year, they were not married and the only reason he didn’t want to claim is because he’s so far behind in child support.

    • Heather

      Absolutely not. A lot of the time, the divorce papers also have a condition that the parent being current in child support in order to take the child tax credit. If she is planning to file your daughter for sure, I would file yourself (especially if the divorce papers have that child support contingency) because the girlfriend does not meet the qualifications.

  • Lara Smith

    hmmm After six years in marriage with my husband with 3 kids, he suddenly started going out with other women and coming home late, each time i confronted him it turns out to be a fight and he always threatened to divorce me at all time, my marriage was gradually coming to an end. i tried all i could to stop him from this unruly attitude but all proved abortive, until i saw a post in the forum about a spell caster who helps people cast spell on marriage and relationship problems, at first i doubted it but decided to give it a try, when i contacted this Spell caster Dr. Dangogo via email, he helped me cast a spell and within 4 hours my husband came back apologizing for all he has done and promised never to do such again and today we are happily together again. Contact this Great spell caster for your marriage or relationship issues via this email; dr.dangogospell@gmail.com

  • Lara Smith

    hmm After six years in marriage with my husband with 3 kids, he suddenly started going out with other women and coming home late, each time i confronted him it turns out to be a fight and he always threatened to divorce me at all time, my marriage was gradually coming to an end. i tried all i could to stop him from this unruly attitude but all proved abortive, until i saw a post in the forum about a spell caster who helps people cast spell on marriage and relationship problems, at first i doubted it but decided to give it a try, when i contacted this Spell caster Dr. Dangogo via email, he helped me cast a spell and within 4 hours my husband came back apologizing for all he has done and promised never to do such again and today we are happily together again. Contact this Great spell caster for your marriage or relationship issues via this email; dr.dangogospell@gmail.com

  • sondra

    I live in a different state and my ex claims both children. I want to claim one child
    . Do I have to get it added in the custody agreement? I pay child support plus other expenses.

  • Tonya Lane

    I wanna know since i work from home as a daycare provider and my husband outside the home can he claim the children and then I file them

  • Sarah

    My son’s dad wants to claim our son every other year. He pays 20% of his income to me each month and sees our son the days he is supposed to. He’s very good about seeing him and paying. He seeing him less then 50% of the year and when it comes to financially supporting our son on his time he pays for food and diapers but clothing, bottles, etc are mostly from me. Me being the residential parent I’m wondering if it’s worth going through court to try and be able to claim him yearly or if I should just save the trouble and money and let him switch each year.

  • Lindsey F.

    My son is only a year and a half years old. I was never married but me and his father have recently split up. I get the baby more than 50% of the time, his dad only gets him weekends. We both work and even though his dad works more than me and makes more than I do, I signed that form last year to let him claim our son. For the 2014 tax season, I want to claim our baby. Last year, he spent over half of that tax money on toys for himself, he saved some but blew through it during the summer. All that money didn’t even go towards anything for our family. He was selfish and very irresponsible with it. At least, when I’d get to claim the baby and get my tax returns, I would save a lot of it and use it wisely. And actually since we have split, we haven’t really come to an agreement or filed child support (yet?) It’s been a bad situation. Would I be able to claim the baby?? I’m going to school full time online for college (2nd year) and the money could help me and my son out so much!!! I just don’t know what to do! I file my taxes really fast, get my W2 and get them sent off very early in the tax game, and get it direct deposited into my bank account so I’m like tax – return – savy.

  • fea

    my ex and I broke up we where together for two years he claimed my kids year before but I claimed them this year. they are not his kids no legal or genetic bind. in Missouri can he legally fight it if I already claimed them

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  • CMeadows

    My e-file was rejected this year because someone claimed my granddaughter. We have had custody of our granddaughter since July, 2012 and claimed her the past couple years with no problems. Now it’s a problem, I have sent in a paper copy as directed by my tax preparer. Do either parent have a right to the dependent exemption credit even though, she lives with us and neither parent has her more than an occasional visit.