Child Custody and Taxes

When you and your spouse decide to call it quits, you're more worried about you're your children will think than what the IRS will think. That's only natural -- when parents are dealing with custody issues, often the furthest thing from their minds is how it will affect their tax status. But if you want to avoid serious tax penalties, or reap significant tax benefits, it's better to figure it out sooner than later.

Here is a brief primer on child custody and taxes.

Benefits Available for Claiming a Dependent Child

There are numerous standard tax benefits to claiming a child as a dependent:

• The exemption for the child
• The child tax credit
• Head of household filing status
• The credit for child and dependent care expenses
• The exclusion from income for dependent care benefits
• The earned income credit

However, the rules are more complicated for divorced or separated parents. If you claim your child as a dependent, you cannot split these benefits with the other parent, even by your own agreement.

Can Both Parents Claim a Dependent Child?

The dependency exemption cannot be split. Generally, the custodial parent is treated as the parent who provided more than half of the child's support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if certain conditions are met.

The custodial parent can sign a Form 8332 Release of Claim to Exemption for Child of Divorced or Separated Parents, or a substantially similar statement, and provide it to the noncustodial parent who attaches it to his or her return. Please be aware that if the custodial parent releases the exception, the custodial parent may not claim the Child Tax Credit.

Child Custody and Taxes: How the IRS Decides Who Gets the Benefits

Both parents treat the child as a qualifying child if you file a joint return. But if more than one person claims tax benefits, the IRS uses the following tiebreakers to determine who can treat the child as a qualifying child:

• If only one of you is the child's parent, the child is treated as the qualifying child of the parent
• If both of you are the child's parents, the IRS treats the child as a qualifying child of the parent with whom the child lived for the longer period of time during the year
• If both of you are the child's parents and the child lived with both of you for the same amount of time, the IRS treats the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year
• If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year
• If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year

How Court Custody Orders Affect Deductions

IRS Publication 504 covers who may claim a dependency exemption, and how, following a divorce or separation. Regardless of what the custody orders the court has issued, federal law determines your federal tax status. Therefore, the IRS requirements supersede a county or state court order. But you can agree during custody negotiations to release your claim on the exemption using IRS Form 8332 (discussed above).

Need to Know More About Your Child Custody and Taxes? An Attorney Can Help

When you're trying to resolve a divorce, the last thing you want is the IRS scrutinizing your taxes. A family law attorney can help you resolve disputed issues with your divorce and can also help you determine who can claim, and how to claim, any tax benefits for your dependent children. Find an experienced family law attorney who can help you with child custody, taxes, and other matters, near you.