Tax status of children following divorce.

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Tax status of children following divorce.

Who gets to claim the children in a divorce being there are 2 on income tax?

Asked on June 25, 2009 under Family Law, Mississippi

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Special rules apply regarding the dependency exemption for children of divorced and separated taxpayers.  Generally, the custodial parent with respect to whom the child is a "qualifying child" is entitled to the dependency exemption.  The custodial parent is the parent having custody for the greater portion of the calendar year.

Nevertheless, a child may be treated as the qualifing child of the non-custodial parent when, for example, the custodial parent releases the claim to a dependency exemption to the noncustodial parent for the year. 

Where parents have joint physical custody of a child, it may not be clear which parent is the custodial parent, that is, which one had custody for a greater portion of the year.  If this matter is at all doubtful, it is important to keep a log of exactly where the child lives during the year.  Some spouses even alternate years, so that one year one parent claims the exemption and the next year the other parent claims it. 

It is important to address squarely and to settle the issue of which spouse is to be entitled to claim the dependency exemption.  The spouse who will not claim the exemption should sign the appropriate release.  That way, if the spouse who is entitled to claim the exemption is found to be noncustodial, the release will insure that he or she is entitled to claim the exemption. 

Since this can get complicated, you should speak to your divorce attorney about this.


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