Taxes and Child Custody: Who Can Claim the Child as a Dependent? (And Other Exemption Questions)

When it comes to your taxes,
who gets to claim the child
on their tax return as a dependent
when you're divorced or separated?

Whether you're in the middle of a divorce, already have the decree, or are separated from your ex, you may find you have a number of questions in regards to how you'll be filing your income taxes from here on out.  I'm Dennis Gac, and as an advocate for fathers' rights, I hear a lot of questions and horror stories about how come tax time, no one wants to follow the rules in regards to claiming a child as a dependent and filing as Head of Household on their taxes.  Here is a list of the most common questions I receive regarding taxes and child custody.  Click on each question to be led to the post with the answer and explanation as to what should be done in each situation.


I have a court order saying that I have the right to claim the tax deduction on my child even though I'm the non-custodial parent, but the IRS tax laws state that the person that the child stays with more than half the year (in my case, the custodial parent) receives the tax deduction.  Which rule do I follow?

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?

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?

Does the custodial parent automatically get the tax deduction for children each year?

Are child support payments tax deductible?

In my divorce decree and parenting plan for my children, the court ordered that I would get the tax exemption for my children each year.  My ex-wife is telling me that she is going to file before me and claim the children and head of household to get a bigger tax return.  What do I do?

What is the IRS Form 8332 and what would I need it for?

I receive child support payments from my ex.  Do I have to claim this on my taxes as income?

Taxes and Child Custody: What is the IRS Form 8332 and What Would I Need it For?

What is the IRS Form 8332 and what would I need it for?

If you are a divorced or separated parent with a minor child, then only one of you will be able to legally claim your child on your taxes. For some parents, they want the child tax deduction to receive a better refund or to offset taxes that might be owed.  Others have a better financial benefit for filing head of household with the child as a dependent.  If you have been in the courtroom for a divorce or legal separation, you may already have court orders as to who claims the child on their taxes and when (some parents alternate years, or in relationships with more than one child, one parent claims one child every year, the other claims another every year).

However, if you do not have a court order in place as to who gets the claim your child every year on their taxes, then section 152(e)(1) of the IRS tax code governs who can claim the child—the parent who has the child more than 50% of the time.  In most cases, this is the custodial parent, or the parent with primary physical custody.

When one parent is claiming the child, it is strongly recommended that they file their taxes with a signed 8332 IRS form from the other parent.  This form is a technicality that just shows the other parent that they are signing over their right to claim the child as a dependent, and will help if the IRS ever audits you or your ex-wife for possible fraudulent tax claims.

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

Taxes and Child Custody: What to Do if Your Ex is Going to Claim Your Child on Taxes Against Court Orders

In my divorce decree and parenting plan for my children, the court ordered that I would get the tax exemption for my children each year.  My ex-wife is telling me that she is going to file before me and claim the children and head of household to get a bigger tax return.  What do I do?

When it comes to claiming children on taxes, any court order signed by a judge will overrule IRS tax codes.  IRS tax codes come into play if there is no court order regarding who claims the child on their taxes, or if the verbiage on the court order is unclear as to who gets the tax deduction.  Section 152 of IRS tax code covers how the tax exemption claim is determined if no court order is already in place for the parents to follow and abide by.

When claiming a child on your taxes, it is highly recommended that the other parent that is NOT claiming the child sign an 8332 IRS Form, which is the “Release of Claim to Exemption for Child of Divorced or Separated Parents.”  This is not required, but definitely makes it a little easier and lets the other parent know that they are giving up their rights to claim the child on their own taxes.

If you ex-wife ends up claiming the children on her taxes and you get a letter back from the IRS stating that you cannot claim your child because that Social Security number has already been claimed by someone else, then you could take a copy of that letter and file a motion through the courts for an order to show cause regarding contempt of court.  Your ex will then have to show cause as to why she violated the court order, and you will more than likely be compensated for what you lost out on from the claim and may even be compensated for the court costs and legal fees you incurred in order to bring the order to the courts.

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

Taxes and Child Custody: Do I Follow Court Order or IRS Tax Code to Claim Child Exemption on Taxes?

I have a court order saying that I have the right to claim the tax deduction on my child even though I'm the non-custodial parent, but the IRS tax laws state that the person that the child stays with more than half the year (in my case, the custodial parent) receives the tax deduction.  Which rule do I follow?

Sometimes, when it comes to divorce or custody cases, there are sometimes situations in which the court will rule certain circumstances in regards to claiming a child on one's taxes.  For example, if you were going through a divorce case, you may have mediated with your ex-wife and worked out an agreement that although she had more time with the children, that you were to claim the children on your tax returns as head of household to receive the tax benefits.

When it comes to court divorce decree versus IRS tax code, a signed order by a judge overrides the IRS tax code.  So if you have a signed court order stating that you are the one to receive the tax deduction, then this will override any IRS tax code that is in place in regards to claiming a dependent child.  If you and your ex agree to alternate years, you may need to fill out and sign IRS Form 8332, which is a “Release of Claim to Exemption for Child of Divorced or Separated Parents.”

If you file for the exemption and later find out by the IRS that your ex filed for the exemption on the child against court orders, you would then file through the courts a motion for order to show cause regarding contempt, as your ex would have violated a court order by claiming the child even though a previous order ruled otherwise.

See other questions related to taxes and child custody by clicking here!