Taxes and Child Custody

Fighting with your Ex over who gets to claim your kids as dependents on this year’s tax forms?


What you need to know about federal tiebreaker rules for claiming dependents

Normally, the parent who has custody for the majority of the year gets to claim your child as a dependent for tax purposes. But it can be confusing if you share custody with your ex. For example, your children spend equal amounts with both of you - a real "50/50" split. In these instances, the IRS uses what are known as "tiebreaker rules" to determine which parent can claim the children as dependents.

Now, according to the IRS, sometimes a child meets the rules to be a qualifying child of more than one person. A qualifying child must be related to you. If the child is the qualifying child of more than one person, only one person can claim the child as a qualifying child for all of the following tax benefits. This is where the tie-breaker rule comes in.

Under the tie-breaker rule, the child is treated as a qualifying child only by:

  • The parents if they file a joint return;
  • The parent, if only one of the persons is the child's parent;
  • The parent with whom the child lived the longest during the tax year, if two of the persons are the child's parent and they do not file a joint return together.  
  • The parent with the highest average gross income (AGI) if the child lived with each parent for the same amount of time during the tax year, and they do not file a joint return together;
  • The person with the highest AGI if no parent can claim the child as a qualifying child; or
  • A person with the higher AGI than any parent who can also claim the child as a qualifying child but does not.



FAQs About Claiming Dependents

What if the parents share physical custody, but the split is not 50/50?


In cases where two parents share physical custody, but the child clearly resides with one parent for more than 50% of the time, then the parent with the greater percentage of parenting time is eligible to claim the child as a dependent for tax purposes.

What should I do if I think that I have the right to claim my child as a dependent, but my ex has already told me that he intends to claim my child anyway?

In this situation, it is best to seek the advice of a professional tax advisory to be sure that you are eligible to claim your child as a dependent. In the event that you've confirmed your eligibility, go ahead and file your taxes, but be prepared to defend yourself in the case of an audit. Generally speaking, when the IRS receives multiple tax returns claiming the same dependent child, they will audit the taxpayer they believe is ineligible to claim the child as a dependent.

What if the parent who is eligible to claim the child as a dependent chooses not to?

Parents who are eligible for claiming dependents can opt to allow the other parent to claim the child or children by completing form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent. Click here for form.


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