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Which Spouse Gets to Claim Child as Dependent?

By Cynthia Hsu, Esq. | Last updated on

Most Americans know that you can claim a dependent and get a tax exemption. But when you're divorced, does the tax exemption still apply?

This question can become tricky especially in cases where both parents have legal rights with regards to the children. After all, the child can only be claimed once. Both ex-spouses cannot claim the child as their dependent on their tax returns.

In many situations, the custodial parent -- the one the child lives with -- will be the one who is able to claim the exemption.

But who qualifies as the custodial parent? The custodial parent is the one whom the child has lived with for the most number of nights during the tax year. If the child lived with both parents for equal number of nights, the custodial parent is the one with the highest adjusted gross income according to the IRS.

There are situations when the non-custodial parent can claim the tax exemption.

But several requirements must typically be met:

  • The parents are legally divorced or separated.
  • The child received more than half of his or her support from the parents.
  • The child was in the custody of one or both parents for at least half of the year.
  • And either:
    • The custodial parent has signed a declaration stating they will not claim the child as a dependent. The non-custodial parent will need to attach a copy of this agreement to their tax return. There may be additional -- or alternative -- paperwork depending on when the divorce was handed down.
    • Or there is a pre-1985 divorce that has a written agreement that applies to 2011. The agreement must specifically state out that the non-custodial parent can claim the child as a dependent. The non-custodial parent must have provided at least $600 for the child's support in 2011.

For more information on if you can claim your child's dependent tax exemption, contact a tax attorney or a CPA. After all, your divorce will impact your tax exemptions.

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