Which parent claims the tax deduction for the children on their return?
Dependent tax deduction for the children generally default to the parent who has primary custody.
Even with shared custody, one of the parents has the children in their home more than the other.
During a separation, there may not yet be a formal agreement on this issue. In that case, by counting these overnights on the schedule you can determine who actually had more overnights.
The exemption also depends upon who pays more than 50% of the child’s living expenses.
Even if you are receiving support, which is usually called Pendente Lite (during the penancy of the divorce), generally the parent with more overnights is entitled to the exemption.
Once divorced, there is usually an agreement on this specific issue. The parent of primary custody (some call it parent of primary residence) can elect to allow the other parent to claim the dependent exemption and it can be agreed upon in the final settlement agreement.
Federal income tax rules apply in all states, so this applies to everyone.
The full text from the Internal Revenue Service on this issue can be found at:
Below is an excerpt from the Internal Revenue Service Publication 504:
In most cases, because of the residency test (see item 3 under Tests To Be a Qualifying Child in Table 3), a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if the special rule (discussed next) applies.
Special rule for divorced or separated parents (or parents who live apart). A child will be treated as the qualifying child of his or her noncustodial parent if all four of the following statements are true.
- The parents:
- Are divorced or legally separated under a decree of divorce or separate maintenance,
- Are separated under a written separation agreement, or
- Lived apart at all times during the last 6 months of the year, whether or not they are or were married.
- The child received over half of his or her 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.
- Either of the following applies.
- The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement that went into effect after 1984 and before 2009 , or Post-2008 divorce decree or separation agreement , later.
- A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2014 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child’s support during 2014. See Child support under pre-1985 agreement , later.
Custodial parent and noncustodial parent: The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent. If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year. A child is treated as living with a parent for a night if the child sleeps:
- At that parent’s home, whether or not the parent is present, or
- In the company of the parent, when the child does not sleep at a parent’s home (for example, the parent and child are on vacation together).
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