With the end of the year just past and tax season on the horizon, an important issue that I encounter regularly in my family law practice revolves around which spouse is permitted to claim the child or children on their taxes.
The general rule is that a parent can claim a child as a dependent as long as the child has resided with him or her for more than half of the year. Therefore, the parent with primary physical custody of the child will be able to claim him or her as a dependent. However, in shared custody arrangements, the situation can become more complicated.
There are certain circumstances in which the non-custodial parent can claim a child as a dependent. The non-custodial parent must meet certain criteria and other overarching circumstances must exist. First, the parents must be divorced or living separately for the previous six months. Second, the child must have received more than half of his support over the year from the parents. Third, the child must have been in the custody of one or both of the parents for more than half of the year. (This criteria prevents parents from claiming a child as a dependent if the child has been cared for by a relative or government agency). Fourth, the custodial parent must sign a form acknowledging that he or she will not claim the child as a dependent for that year.
It is important to keep in mind that the IRS definition of "custodial parent" is the parent with whom the child lived for the greater number of nights in the year. Therefore, regardless of with whom the child spends more hours, the parent with more overnight custody will be the custodial parent in the eyes of the IRS. Parents must keep this definition in mind when deciding whether or not to claim the child as a dependent.
The tax consequences following a divorce can be complicated for many reasons. How to handle claiming a child or children on one's tax return is only one of many issues facing recent divorcees. If you have any concerns about how to handle these or other issues, contact an attorney at my Pittsburgh legal practice, Gusty A. E. Sunseri & Associates, to help guide you through the process.