Learning Center
Who Claims the Kids When Parents Divorce?
Divorce or separation doesn't just lead to emotional and familial upheaval; it also introduces complexities in financial matters, particularly when children are involved. One often misunderstood and hotly contested issue is determining which parent claims the children for tax purposes. This decision impacts who receives various child-related tax benefits.
Qualifications - Generally, a child must meet the “qualifying child” criteria to be claimed as a dependent.
Relationship Test: The child must be:
Your son, daughter, stepchild, or foster child, or a descendant (e.g., grandchild) of any of them; or
Your brother, sister, half-brother, half-sister, stepbrother, or stepsister, or a descendant (e.g., niece or nephew) of any of them.
Age Test: The child must be:
Under age 19 at the end of the year and younger than you (or your spouse if filing jointly); or
A student under age 24 at the end of the year and younger than you (or your spouse if filing jointly); or
Permanently and totally disabled at any time during the year, regardless of age.
Residency Test: The child must have lived with you in the United States for more than half of the year.
Joint Return Test: The child must not be filing a joint return for the year, unless it's only to claim a refund of income tax withheld or estimated tax paid.
Additionally, to qualify as a student, the child must be, during some part of five calendar months of the year, a full-time student at an appropriate school or in a full-time on-farm training course. The term "school" includes a range of educational institutions but excludes certain on-the-job training, correspondence schools, or online-only schools.
Understanding Custody and Tax Implications
Custodial Parent: The custodial parent is generally the one who the child spends more nights with during the year. Tax law grants this parent the right to claim the child's dependency, which comes with several associated benefits, such as the Child Tax Credit and the Earned Income Tax Credit (EITC).
Joint Custody: In cases where physical custody is shared equally, only one parent can claim the child for tax purposes. The IRS applies tiebreaker rules to determine who receives the benefits if both parents try to claim the child simultaneously.
Family Court: The federal tax laws take precedence over family court decisions when deciding who can claim a child as a dependent for tax purposes. Even if a family court awards custody or makes a decision regarding which parent should claim a child, the IRS rules are the determining factor for tax purposes. For example, the IRS stipulates that the custodial parent, as defined by tax law, has the right to claim the child unless they release this claim to the non-custodial parent.
Tiebreaker Rules for Claiming Dependents - The IRS sets specific rules if parents can't agree on who claims the child:
The parent with whom the child resided for more nights during the tax year claims the dependent.
If the child spent equal nights with both, the parent with the higher adjusted gross income (AGI) claims the child.
Key Tax Benefits and Credits
Child Care Credit: The custodial parent can claim this nonrefundable credit designed to cover childcare expenses, allowing the parent to work or look for work, provided the child is under age 13 or disabled. Even if the dependency exemption is transferred to the non-custodial parent, the custodial parent retains the right to this credit.
Child Tax Credit: To qualify, the child must be claimed as a dependent by the parent. It offers a credit of up to $2,000 per child under age 17, with income thresholds affecting the amount of the credit.
Earned Income Tax Credit (EITC): This benefit is available to the custodial parent, regardless of whether the dependency exemption is transferred. Non-custodial parents cannot use EITC based on children they don't live with.
Education Credits: Credits like the American Opportunity Credit and Lifetime Learning Credit can only be claimed by the parent who claims the child as a dependent, offering substantial reductions to taxable income.
Student Loan Interest Deduction: While not a credit, the student loan interest deduction allows the qualifying parent to reduce taxable income based on interest paid on qualifying student loans, provided they claim the child as a dependent.
Determining Support - Support plays a crucial role in tax benefit qualifications:
Financial Support: Generally, includes expenses related to housing, food, clothing, education, and other essentials. The parent providing more than half the support typically influences custodial status and related benefits.
Physical Custody vs. Financial Support: The custodial parent under tax rules is not necessarily the one providing the most financial support but rather the one with whom the child lives the greater amount of time.
Navigating Tax Decisions - Divorce introduces restrictions and responsibilities regarding tax filing:
Dependency Release: In the case of a divorce, a child can be treated as a qualifying child of the noncustodial parent if certain conditions are met under the special rules for children of divorced or separated parents, or parents who live apart.
Generally, a child must meet the qualifying child criteria to be claimed as a dependent. However, under the special rules for divorced or separated parents, a child can be claimed as a dependent by the noncustodial parent if the following conditions are true:
The parents are divorced, legally separated, separated under a written agreement, or always lived apart during the last 6 months of the year.
The child received over half of their support for the year from the parents.
The child is in the custody of one or both parents for more than half of the year.
The custodial parent signs a written declaration using IRS Form 8332 that they won't claim the child as a dependent and the noncustodial parent attaches this declaration to their return. Form 8332 can be structured on an annual or multi-year basis, but once released, it's binding for that timeframe.
This special rule allows a child to be claimed as a dependent by the noncustodial parent even if they do not meet all the standard qualifying child requirements.
Filing Status: Divorcees must consider their tax-filing status. If they qualify as head of household, they can access different brackets and deductions that could significantly influence their tax position. To qualify for head of household filing status, you must meet the following requirements:
Unmarried or Considered Unmarried: You must be unmarried or considered unmarried on the last day of the year.
Paid More Than Half the Cost of Keeping Up a Home: You need to have paid more than half the cost of keeping up a home for the year. This includes expenses like rent, mortgage interest, real estate taxes, insurance, repairs, utilities, and food consumed in the home.
Qualifying Person: A qualifying person must have lived with you in the home for more than half the year, except for temporary absences such as school. If the qualifying person is your dependent parent, they do not have to live with you, but you must be able to claim them as a dependent.
Additionally, if your spouse lived with you at any time during the last 6 months of the year, you might not be considered unmarried and could be disqualified for the head of household status unless your spouse was a nonresident alien and other specific conditions apply.
Collaboration and Tax Advisor Guidance: For the best outcomes, collaborating with the ex-spouse and consulting a tax advisor ensures tax benefits are optimized, avoiding unintended penalties or audits.
Divorce complicates the already intricate tax laws surrounding child-related benefits. Understanding and efficiently navigating these rules not only ensures compliance but also allows parents to maximize their financial benefits for the greater good of the children involved. Proper planning and strategic consideration of tax benefits can lead to better financial health post-divorce.
Consult with this office when dealing with complex tax-related decisions in these scenarios.
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Rose Tax & Financial
Cedar Crest, New Mexico 87008
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