Taxes and Child Custody: Joint Physical Custody of My Child and No Court Order Regarding Who Gets to Claim Child on Taxes?

There is no court order in regards to who gets to claim our children on their taxes each year.  IRS code states that the custodial parent (or the parent with whom the child lives with) automatically receives the tax deduction.  What happens if I have no court order regarding who gets to claim the child, and I have joint physical custody of my children?

When the children are split equally time-wise and there is no court order, it can be more difficult to determine who gets to “technically” claim the children each year.  If you and your ex cannot come to an agreement or an arrangement on who claims when, then you have two options—you can either go back to court to have a judge rule and create an order that works best for the two of you, or you could actually figure out who had the children most during the last year.

With no court order, you need to go with what is set forth in Section 152 of the IRS tax code.  Physical time with each parent is considered by how many nights the child stayed at the parent's place.  So out of 365 days, how many days did the children spend the night with you?  If it is less than with your ex, then your ex could legally claim the exemption.  If the children spent more time with you, then you have the right to claim them and claim head of household as well.  As long as your children spent the night at your place for 183 days out of the year or more, then you can claim the children on your taxes and receive the child tax exemption.  If doing it this way, you would need your ex to sign the IRS Form 8332, “Release of Claim to Exemption for Child of Divorced or Separated Parents.”

For more questions and answers regarding taxes and child exemptions and deductions, click here!