FAQ: Can I Claim My Child As A Dependent Now That I'm Divorced or Separated?

Frequently Asked Questions About Divorce and Taxes

Section 152(e) of the Federal Tax Code provides that the custodial parent is generally entitled to the personal exemption for the qualifying child. To be a "qualifying child", you must satisfy four tests:

• Age - the child must be under the age of 19 at the end of the tax year or under the age of 24 and be a full-time student
• Relationship - the child must be your child (biological, adopted, step, foster) or a descendant of one of them (grandchild) or your brother or sister (full, half, step) or a descendant of one of them (niece, nephew)
• Residency - the child must have lived with you for more than half the year
• Support - you must have provided more than half of the child's support during the tax year

In cases where the non-custodial parent wishes to claim the exemption, additional requirements must be satisfied:

• The child receives more than one-half of his support during the calendar year from his parents and the parents are divorced, legally separated (either by decree or written agreement) or living apart for at least the last six months of the year; and
• The child is in the custody of one or both of the parents for more than one-half of the calendar year

In addition, to claim the exemption, one of the following documents must be attached to the return:

• The custodial parent releases the claim for the exemption (Form 8332 - See Section 152(e)(2)); or
• A multiple support agreement establishing who can claim the exemption (See Section 152(e)(3)); or
• A pre-1985 agreement granting the exemption to the non-custodial parent and said parent provides at least $600 for the support of the child during the tax year
  

What does this mean for you?

If you're the custodial parent, you are probably entitled to the exemption unless you have agreed to allow your spouse to claim the child on his or her taxes. To be sure, you should review your divorce decree or separation agreement to determine who is allowed to take the exemption.

What if you have joint physical custody? The IRS does not allowfor a single exemption to be "split" between the two parties in the same year. You can take turns claiming the exemption by swapping out years but the custodial parent will have to sign IRS Form 8332, releasing their claim on the exemption for the year in question.  Or each parent could claim different children - if there are two, for example, mom can claim one and dad can claim one.

In general, the IRS allows the parents to agree who can take the exemption when both parents meet the qualification requirements, such as in the case of joint physical custody. If the parents cannot agree and the child lived with both parents the same amount of time, then the IRS will grant the exemption to the spouse with the higher adjusted gross income (AGI) and disallow the claim on the other parent's return. If the parents cannot agree and the child lived with one parent even slightly longer than the other, then the IRS will grant the exemption to that parent and disallow the claim on the other parent's return.

It should also be noted that other credits such as the child tax credit, earned income and deductions for child care expenses can only be taken by the parent claiming the child as an exemption - these cannot be divided between the parents.