Issues In Divorce - Tax Dependents


Wood letter on tax form spelling out the word taxes

When 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 children if it's not in the divorce decree?

Wood letter on tax form spelling out the word taxes

Becky's Question: I was divorced in October. There is nothing in the divorce agreement about taxes. I have physical custody and we share legal custody. Do I get to claim both children on my tax return or do my ex and I each claim one child?

Brette's Answer: This is a question I am getting a lot at this time of year. If the divorce decree doesn't state otherwise, the parent with whom the child spends the most number of nights during the year (i.e. the custodial parent) is generally the one who is entitled to the exemption. It is possible to change who takes this, if you sign a release of claim to exemption

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. The children live with me and we have been divorced for five years. Does my ex-husband legally have any right to claim either of my children at all?

Brette's Answer: It depends on who has physical custody of your children. According to the IRS, only the custodial parent can claim the dependent exemption (for tax years 2018 through 2025, the new law eliminates dependent exemption deductions, but increases the child tax credit).

Can I claim her as a dependent on taxes since I’m the custodial parent?

Jacquelyn's Question: My daughter recently started kindergarten and is now living with me. From the moment she has started school he has not paid any child support. He hasn't picked her up on the weekends and rarely calls. Can I claim her as a dependent for taxes next year since I am taking care of everything financially, mentally, emotionally, & spiritually?

Brette's Answer: The tax exemption for dependents depends on your custody order. The parent who has the child more than 50% of the time takes the child as a dependent unless the order states otherwise. You can file for child support if you would like regular, dependable payments. 

I claim my son on even years. Does this apply to the tax year or the filing year?

Allison's Question: We have joint physical custody and I am to claim our son on even years and the father is to claim him on odd years, for taxes.  My question is - is it based on when you file the taxes, or the year for which taxes are filed.

Brette's Answer: That usually refers to the tax year you are filing for.

How much can I claim on the dependent care tax credit?

Jennifer's Question: I am the custodial parent of my son. As part of our divorce decree, my ex has to pay half of the daycare costs. I understand that only the custodial parent can claim the dependent daycare credit. But what is not clear to me is do I only claim my half or do I claim the full amount we pay together?

Brette's Answer: You can only claim what you personally pay.

Can I claim the child care credit if my ex pays for daycare?

DeAnna's Question: My ex pays child support and for daycare expenses through our child support agreement. He has won the right to claim our daughter as a dependent with the child tax credit. According to the IRS site, only the custodial parent can claim daycare expenses. I am the custodial parent but he pays the daycare expenses through child support. Is it ok for me to claim the daycare expenses?

Brette's Answer: If you don't pay the daycare costs yourself, you aren't eligible to deduct them. Talk to your tax advisor about this rule and how you might make some changes to qualify.

Is the deduction for every year if it's awarded in the decree?

Susan's Question: If the divorce decree mentions that  the 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.

Brette's Answer: It means every year, but you can seek to get it changed if there has been a change in circumstances.

Can I still claim my son on taxes if he spent last year with his Dad?

Melynda's Question: In my divorce papers it states that I claim my son every year. My son spent his senior year at his dad's. Can I still claim him?

Brette's Answer: I'm getting a lot of these questions at this time of year. Read an article I wrote explaining it all here:

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 me 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.

Brette's Answer: Since 2018, the custodial parent was the one who was able to claim the dependency exemption for their children. If your divorce papers still say the parents will alternate years claiming the child for tax purposes, this will need to be changed due to the change in custody.

How do we change the tax dependent claim if custody changed?

Jennifer's Question: In our divorce agreement, it stipulates my husband would be entitled 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'll need to go 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.

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 paying more child support. Isn't the custodial parent the one who gets 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: Under the new tax laws, the custodial parent is the one who is eligible to claim dependent children. Since your son only stayed with his father for less than half of the year, he would be ineligible to claim the tax credits. You need to go back to court to get that changed in your divorce papers. Good luck.

I claimed our son by mistake when it was my ex's year to claim him.

Mimi's Question: Every other year my ex-husband and I switch who claims our son in our taxes. When I was doing my taxes online, I forgot to delete my son's information, so I accidentally claimed him. I called his dad right away, told him what happened, and said I was going to give him the money back once I get it. Now he is going to his lawyer, saying I did it on purpose and that what I did is against the law and it's a felony. Help.

Brette's Answer: The simplest thing to do would be to amend your tax return to correct the mistake. Good luck.

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 I be in contempt if I refuse to sign the 8332 form?

Robyn's Question: I signed and agreed in my divorce decree that I would allow my ex to claim our son every year and our daughter every year I am not working. He sent me the form 8332 and I change my mind about allowing him to claim them so I refused to sign them. Can I be held in contempt for this?

Brette's Answer: Yes. You can seek to modify the order if you have a reason. Good luck.

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. A modification would be unlikely due to the fact he doesn't have residential custody for more than half the year.

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 didn't stipulate who gets to claim them on their taxes, 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 has claimed one of our sons on his taxes according to the provision in our divorce decree, but provides very little to both of our children and only sees 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 much time he spends with them and what kind of financial support he provides.

Does a verbal agreement on claiming the kids suffice for the IRS?

Question: It is not in our divorce decree who gets to claim the children each year for taxes, but we have a verbal agreement to alternate years though I am custodial parent.  Does a verbal agreement suffice for the IRS and still qualify me for Head of Household?

Brette's Answer: This is the IRS rule about who can claim this:

Would he owe me any of the refund if I let him claim our son?

Kathy Asks: We have split custody of our son and it's my turn to claim him on my taxes. Since I haven't had a job in a year, can I let my 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.

© | Updated September 15, 2021


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