Who Claims the Child on Taxes?

Who Is the Custodial Parent?

Generally speaking, the custodial parent is the parent that has the majority of the custody. Even if you and your spouse share joint custody, there will still be a custodial parent—even if you have “50/50.” 50/50 custody is a bit of a misnomer since you don’t really have half and half. Custody is determined by how many overnights a child spends with each parent. In situations where the couple shares 50/50 custody, one parent gets 183 overnights while the other parent gets 182 over nights, for a total of 365 nights per year. The parent with the 183 overnights will typically be the custodial parent. However, if you do not know which parent is the custodial parent, you may need to review your divorce decree to determine whether or not you’re the custodial parent. You may also want to look to see if there’s any mention of who is going to claim the child on the taxes. If you have any questions about what’s written in your decree, you will need to ask your attorney.

What If My Ex Claims the Child Instead?

If your ex claims the child, and they weren’t supposed to, you may still be able to file a return and claim the child on your taxes. However, you will likely have to file your taxes in paper since electronic filing services will probably notify you that the child has already been claimed. The IRS will likely investigate, and you may have to prove that you’re the rightful custodial parent and that you are entitled to claim the child on your taxes. Compiling evidence that your child really does reside with you and that you are the rightful custodial parent can be a daunting task. Make sure you have all relevant documentation ready for when the IRS investigates. If your ex has made an honest mistake, you may be able to reach out to them and ask them to file an amended tax return so that you can claim the child—however, if your ex has done this maliciously, you will likely not be able to convince them to file an amended tax return. If you are entitled to the tax deduction in your divorce decree, but your ex has claimed the child, you will be able to go to court to have the order enforced. If the IRS has let you claim the child on your taxes, but you are not entitled to do so in your divorce decree, the court can still hold you in contempt until you are in compliance with the divorce decree.

Does the IRS Really Know Which Parent Is the Custodial Parent?

No, the IRS does not know which parent is the custodial parent. However, child tax credits are worth a significant amount of money—especially if you’ve got a lot of kids. Therefore, although you may be able to (temporarily) fool the IRS into thinking you’re the custodial parent by filing your taxes first, your ex is not likely to forget about the fact that they’re entitled to claim the child tax credit. If your ex is filing online, they would probably know immediately if you claimed the child. Even if your ex is filing on paper, the IRS will eventually do some investigating since two people cannot file a claim for the same child. If the IRS finds out that you claimed a child when your ex was supposed to claim the child, you will likely be ordered to pay back whatever money you received, and you could face more serious consequences as well.

What about Dependent Adults?

If you have an adult child who is dependent, you may be able to claim them on your taxes. However, you should know that just because your child is dependent doesn’t mean that you’re automatically able to claim them as dependent—even if they are genuinely dependent upon you. In order to claim your child as “dependent” they have to meet a certain set of standards according to the IRS. Typically, adults over the age of 24 are not able to be claimed as dependents, however there are certain exceptions.

When in Doubt, Hire a Professional

While your attorney may be able to help you understand the terms of your divorce decree, your attorney’s job is not to help you file your taxes—and your attorney may not be qualified to help you file your taxes anyway. If you are confused about the intricacies of your tax situation, and you need help, you may want to consider hiring a professional to file your taxes. Assuming your taxes aren’t extremely complicated, hiring a professional to file your taxes for you is likely going to be pretty affordable, and it may save you a lot of trouble down the road.