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  1. #1
    Join Date
    Mar 2015
    Location
    Massachusetts
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    2

    Default Which Parent is Entitled to Claim the Child As a Dependent

    I am the Custodial Parent of an 11 year old son with my ex. I have our son about 55% of the time. Due to financial hardship my ex does not pay child support. She also pays nothing for our son’s medical or dental, and I am not allowed to ask her for money. Our court ordered judgment, which came out of a custody trial and was upheld on appeal, does not specify who claims the child on taxes. I was awarded primary physical custody and we share legal custody. I have since remarried, I file jointly with my new wife, and I've been claiming the child on our taxes. My ex is demanding to claim the child in alternating years. I said no, since I believe that I pay the lion's share of taking care of our son. I offered to split the $1000 child tax credit with her every year. She became enraged and is threatening court. Can I be ordered to alternate years with her?

    I apologize if this question could have been better placed -- there was nothing under child custody referring to taxation. Please let me know if you recommend moving it under a more suitable category.

    Thanks!

    Milan

  2. #2
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Which Parent is Entitled to Claim the Child As a Dependent

    Absent an order stipulating otherwise, the IRS rules would apply. If you provide more than half the support and she spends the majority of the nights with you, then you get the exemption and count her towards the various credits.

  3. #3
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Which Parent is Entitled to Claim the Child As a Dependent

    Quote Quoting flyingron
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    Absent an order stipulating otherwise, the IRS rules would apply. If you provide more than half the support and she spends the majority of the nights with you, then you get the exemption and count her towards the various credits.
    I agree, but that won't stop mom from taking it back to court and attempting to get a judge to order that she receives the exemption every other year. I am not saying that the judge will automatically do so, but since its fairly common to alternate the exemption, its possible that the judge would.

  4. #4
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Which Parent is Entitled to Claim the Child As a Dependent

    Quote Quoting Milan
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    My ex is demanding to claim the child in alternating years. I said no, since I believe that I pay the lion's share of taking care of our son. I offered to split the $1000 child tax credit with her every year. She became enraged and is threatening court. Can I be ordered to alternate years with her?

    Milan
    The rule for divorced and separated parents is that the parent who has physical custody of the child for the greater part of the year (i.e. the parent with whom the child spent the most nights of the year) is the custodial parent (CP) for federal tax purposes and it is the CP that gets the dependent exemption. The one exception that would allow the noncustodial parent (NCP) to claim the exemption is if the CP signs a waiver agreeing not to take the exemption and allowing the NCP to claim it instead. Form 8332 can be used for the waiver. IRS Publication 501 explains these rules in detail.

    So, since you had physical custody about 55% of the time, you appear to be the CP and you’d be the one eligible to claim the dependent exemption for your son unless you sign a Form 8332 or similar waiver and give that to your ex.

    The choice to give her that waiver is up to you unless there is something in the divorce decree or custody/visitation order that says she gets the exemption. I’m assuming there isn’t any provision for that in your current orders. Could she go back to court to get an order allowing her to get it on alternate years? Certainly it’s possible. But how likely it is the court would do that in your case is something only your own family law attorney could really tell you since the details of you and your ex's situations are important to that, as well as which state’s law applies (and you didn’t mention the state).

  5. #5
    Join Date
    Mar 2015
    Location
    Massachusetts
    Posts
    2

    Smile Re: Which Parent is Entitled to Claim the Child As a Dependent

    Thank you very much for taking the time to respond to my question. I wanted to give a few more details and if you have anything to add or revise that would be great.

    I did an exact calculation of overnights over the course of an entire year and it works out to be 52.88% with me and 47.12% with mom. Mom has him more in the summer so during the school year it works out to 57.14% with me and 42.86% with mom.

    I pay for all essentials -- medical and dental insurance, therapy, medical and dental bills not covered by insurance, all school related activities and fees, bus fees, daily lunch, after school programs, etc. The only thing Mom pays for (besides food and rent) are dance classes during the school year and his summer program when he is with her during the summer. I pay for his summer program during the period he is with me.

    As stated previously my ex pays zero in child support in accordance with our court order.

    As far as I know my ex has a low income but her boyfriend makes a good living. From all indications it would appear that she would not stand to benefit as much as I do from claiming our child as a dependent.

    Again, I thank you all for your insights.

    Sincerely,

    Milan

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