Issues In Divorce - Tax DependentsWhen negotiating settlement agreements during divorce, tax dependents and exemptions may not be given a lot of thought, if any at all. But once tax season comes around, it can become a big issue, especially when fighting over who gets to claim the kids. The rules for the Dependent Tax Deduction after divorce have changed. Please read the article on The Dependent Tax Deduction after Divorce in conjunction with the information below.
Who gets to claim the tax deduction for dependents? Christy's Question: My ex husband wants to claim both of our children on his tax return, or at least one this year. In previous years, he has claimed both, not sharing the exemption of refunds. The children live with me, and we have been divorced five years. I don't see the fairness, or his right to claim at all. Does my ex husband legally have any right to claim either of my children at all? Brette's Answer: You should check to see if your divorce decree specifies who can take the tax exemptions. If it does not, it's something you have to work out, or return to court about. » Return to top Is the deduction for every year if it's awarded in the decree? Susan's Question: If the divorce decree mentions that non-custodial parent can claim the child as a tax exemption, is this for every year or is there any way this can be amended to every other year. The every year portion was not mentioned in the divorce decree. Brette's Answer: It means every year, but you can seek to get it changed if there has been a change in circumstances. Who gets to claim the children for taxes if custody is modified? Denise's Question: When I was divorced, my papers stated joint custody with claiming my son every other year. Custody was modified later so that I have physical custody, but the tax part wasn't addressed. I just assumed that there was no way he could claim our son because he does not live with him. Now my ex plans on claiming him this year. What can I do? Brette's Answer: If your papers still say you will alternate years claiming your son for tax purposes, that's what you have to do. It doesn't really have anything to do with how custody is arranged. Your alternative is to go back to your attorney and get it changed. » Return to top Do child support payments determine who gets to take the deduction? Cinniman's Question: My soon to be ex-husband wants to be able to claim my son on his taxes even though I will be the custodial parent. He says that if he claims him he will be be paying more child support. How does the taxes usually get filed? Isn't the custodial parent to claim the child regardless of the amount of child support? Brette's Answer: This is usually determined in the divorce decree. Some parents alternate years. In other situations, only one parent ever takes it. Taking the dependency exemption does not mean your ex will be paying more support. In fact, it will save him money on his taxes. Can he claim our son on his taxes if he's behind on child support? Jennifer's Question: Our divorce papers state that the father can claim our oldest child on income taxes. However, over the past year he has only had them about four days out of the month. He is also over $500 behind on child support. Would he still be able to do this legally? Brette's Answer: Yes he would unless you went back to court to get that changed. Good luck. » Return to top What if I claimed the children when he was entitled to the exemption? Kelly's Question: My divorce decree states that my ex can claim 2 of the three children. I have claimed all three for the past five years since we have been divorced. He tells me I am in contempt of court. However, he is behind about 15k in child support and sees them maybe once a year. I raise them and support them, so who is correct? Brette's Answer: What I don't understand is why he didn't claim them if he is entitled to? There was nothing stopping him. Technically, you violated the decree by claiming them, but the fact that he didn't attempt to makes it pretty much a moot point. If he goes back to court to cause you trouble over this, he is going to find himself in contempt for the back support. Would he owe me any of the refund if I let him claim our son? Kim's Question: We have split custody, and it's my turn to claim our son on taxes. Since I haven't had a job in a year, can I let me ex claim our son? Also, would he have to give me any of the tax refund he gets? Brette's Answer: If you're saying it's your turn to claim your child as an exemption, but you have no income so your ex is going to take the exemption instead, no he is not required to give you the money he saves on his taxes. You're only entitled to take the exemption yourself. If you are waiving your right to take it, he can use it and doesn't owe you anything. Now, you might want to be smart about it and say that you're not going to waive your right unless you get something in exchange. » Return to top Can he force me to give up the exemption if I have full custody? Lisa's Question: I have full custody of our 2 children and my ex has visitation every other weekend. In our divorce decree it states that I am entitled to the 2 tax exemptions each year, but now my ex wants to claim the children because he is financially strapped. Does he have any legal way of forcing me to give up these exemptions? Brette's Answer: No. If your court order gives them to you, he would have to seek a modification to get it changed. » Return to top Do I have to agree to modify the decree so he can claim the deduction? Heather's Question: I have been claiming my 3 kids for the last 4 years on my taxes. Our divorce decree does not stipulate who gets to claim them, so according to the law since I am the custodial parent I have claimed them. Now my ex gave me papers to modify the decree so he can claim 1 of the children all the time and 1 child every other year. Do I have to sign this? Will the court accept it if I do not sign this? Brette's Answer: No you do not have to agree to this. If he wants it modified, he can present his case to the court. Can we change who gets to claim the children? Karen's Question: My ex-husband has been claiming one of our sons on his yearly taxes as stated in our divorce decree and provides very little to both of our children and only see them 28 hours a month. Can I petition the court to have this changed and what information do you have to provide to do so? Brette's Answer: Yes, you can certainly ask to have this changed. You would need to provide information about how time he spends with them and what kind of financial support he provides. Often this tax decision is made based upon which parent would benefit from it more, so you would need to show how you could benefit from the exemption. » Return to top How do we change the tax dependent claim? Jennifer's Question: In our divorce agreement, it stipulates that my husband would get to claim our son on his taxes because he had custody. But 2 years ago he dropped him off with me and now only sees him once or twice a month for a few hours. Can he still claim our son on his taxes if he's not the residential parent? Also, what can I do to change who gets the deduction? Brette's Answer: You need to go back to court and have custody officially changed and shift the income tax exemption as well. At this point, he's entitled to claim it since the paper gave him that right. » Return to top
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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