Taxes and Child Custody: Married, Filing Separately--Who Gets to Claim the Child on Taxes Without a Court Order?

I am in the middle of a divorce right now with my wife, and plan on filing married, filing separately for taxes.  If we don't have a court order as to who gets to claim the child on their taxes, how do we determine who gets the tax credit for my son?

There are two rules that govern who can and cannot file for a child's tax deduction: court orders and IRS tax code.  If you have a court order, this overrides the tax code rules, but the IRS does have a way of determining who gets to claim a child on their taxes.  The IRS determines a claim based on who the child stays with the most.  This is figured by overnights.  So in 365 days of the year, how many overnights did the child have with you?  If it was 183 days or more, then you could claim the child on your taxes.  The smartest way to do this with little irritation from the IRS is to have your ex sign IRS Form 8332, “Release of Claim to Exemption for Child of Divorced or Separated Parents.”

For more questions and answers pertaining to child custody and tax exemptions and deductions for single fathers, click here!