To Claim or not to Claim: That is the Question

Parental Rights

Tax filing questions arise very frequently in divorce cases.

One of the issues negotiated in divorce settlements is: upon filing separate returns, which parent has the right to claim a minor child as a tax dependency exemption on income tax returns?

You may be surprised to learn that pursuant to IRS regulations, the party with residential custody of the child gets to claim the child as a dependent, not the party who is paying support. However in divorce negotiations, it is typical for parties to agree to share the dependency exemption, i.e., each parent gets to claim one child, or if there is one child, the parties will each claim the exemption during alternate years. If the parties agree to this, there will be a provision in the divorce agreement and Judgment that addresses this very clearly.

(If you are unsure which parent should be claiming the child, you must first read your divorce agreement and the Judgment of Divorce. Almost always, the Judgment contains language that effectively incorporates all of the provisions in your agreement by reference.

If, pursuant to the Judgment, you do have the right to claim your child, and your ex refuses to sign the IRS form or says that he is going to claim the child in violation of the divorce agreement / Judgment, don’t worry. The divorce decree is your legal defense in the event you are audited.

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